                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2349
                         ___________________________

                                 Christopher White

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                                     Troy Steele

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: March 9, 2017
                               Filed: April 6, 2017
                                 ____________

Before RILEY, Chief Judge,1 GRUENDER, Circuit Judge, and SCHREIER,2
District Judge.
                              ____________

GRUENDER, Circuit Judge.


      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit on March 10, 2017. He has been
succeeded by the Honorable Lavenski R. Smith.
      2
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, sitting by designation.
       Christopher White was convicted of first-degree murder, armed criminal action,
and first-degree assault following a jury trial in Missouri state court. White
petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that the State
failed to disclose that a key prosecution witness received favorable consideration in
exchange for his testimony. The district court3 denied White’s petition, and we
affirm.

                                           I.

       On the morning of June 21, 2002, three men with guns approached the house
of Freddie Chew. Chew drew his gun and fired one shot at the men. In response, the
men shot and killed Chew. Jeffrey Shockley, a friend of Chew who was present at
the scene, later identified White as one of the shooters.

       Shockley testified at White’s trial in January 2004. At the time, Shockley had
state felony charges pending against him for possession of cocaine and unlawful use
of a weapon. On cross-examination, Shockley admitted that these state charges were
pending. On re-direct, he testified that he had not received a deal from the State and
did not expect to “get anything” in exchange for his testimony. The jury found White
guilty of all charges, and he was sentenced to life without parole. Later, Shockley
pleaded guilty to his state felony charges and received a suspended imposition of
sentence and one year of unsupervised probation.

       On direct appeal, White argued that a delay in his prosecution violated his right
to a speedy trial, that the trial court erred in overruling his objections to the jury
instructions, and that the trial court erred in preventing defense counsel from cross-
examining Shockley about whether he was returning to his house to obtain drugs to


      3
       The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

                                          -2-
sell. The Missouri Court of Appeals affirmed White’s conviction. White then filed
a motion for state post-conviction relief with the Missouri trial court under Missouri
Supreme Court Rule 29.15, alleging ineffective assistance of counsel. The trial court
denied the motion, and the Missouri Court of Appeals affirmed.

       In February 2008, White filed a federal habeas petition, reasserting the four
grounds for relief previously raised in the state courts. After White filed his habeas
petition, one of his fellow prisoners, Darryl Smallwood, provided him with an internal
public defender conflict-of-interest form regarding his co-defendant, Juane Kennell.
Kennell’s counsel had written on the form that he “learned that [Shockley’s counsel]
has negotiated a deal for Jeff Shockley to testify against [Kennell] . . . as well as
possibly another defendant, Christopher White.” White’s counsel then obtained
Shockley’s guilty plea transcript, which did not mention a plea agreement but which
revealed that the State had paid to relocate Shockley from his neighborhood.

        On the basis of the conflict-of-interest form and the guilty plea transcript,
White amended his habeas petition in September 2009. He added a claim that the
State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the
existence of a deal with Shockley, and he added a claim that the State violated Napue
v. Illinois, 360 U.S. 264 (1959), by failing to correct Shockley’s testimony that he did
not receive a deal. White also maintained his speedy trial and ineffective assistance
claims but abandoned his other two claims. By affidavit, White asserted that he had
received the conflict-of-interest form in January 2009.

      The district court held that White’s Brady and Napue claims were not time-
barred under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
because they were brought within one year of January 2009, which the court
determined was “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.” See 28



                                          -3-
U.S.C. § 2244(d)(1)(D). Nevertheless, the district court denied White’s amended
petition, holding that all of White’s claims failed on the merits.

      White timely filed a motion to alter or amend the judgment, contending that his
habeas petition was denied before he had completed discovery on his Brady claim.
As a result, the district court granted White an evidentiary hearing. During the
hearing, White and Smallwood both mentioned that Smallwood had given the
conflict-of-interest form to White in 2007 or 2008. Shockley’s former defense
counsel, Robert Taaffe, testified that he never obtained a plea agreement for Shockley
and that there was no “secret deal.” Rather, he explained that around the time the
conflict-of-interest form was dated, the State had made an offer to Shockley, but
Shockley declined the offer because it required him to testify against his brother in
another case.4 Nevertheless, based on his notes from the time he represented
Shockley, Taaffe suggested that the prosecutor in White’s case “hinted at a nolle,”
meaning that the charges would be dismissed. The prosecutor also testified and
unequivocally denied making any such hint.

       After the hearing, the State disclosed expense records showing that, in 2002,
the St. Louis Circuit Attorney’s Victim Services Unit had paid for Shockley to stay
at a hotel for one week and later paid him just over $1,000 to help him relocate to an
apartment in another neighborhood. Despite this additional evidence, the district
court denied White’s motion to alter or amend the judgment. Once again, the court
held that White’s Brady and Napue claims failed on the merits, but it issued a
certificate of appealability on the two claims.




      4
       Shockley admitted that at some point he agreed to testify against his brother,
but he denied that he did so in order to receive favorable treatment on his own
charges.

                                         -4-
                                          II.

       On appeal, White argues that the district court erred in denying his Brady and
Napue claims. The State responds that White’s claims are time-barred, procedurally
defaulted, and without merit. “On appeal of a district court’s denial of a § 2254
petition, we review the district court’s findings of fact for clear error and its
conclusions of law de novo.” Wright v. Bowersox, 720 F.3d 979, 983 (8th Cir. 2013).

                                          A.

       The State first argues that White’s Brady and Napue claims are barred by
AEDPA’s one-year statute of limitations. That provision requires a habeas petitioner
to raise claims within one year of “the date on which the factual predicate of the claim
or claims presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(D). White raised his Brady and Napue claims in
his amended petition in September 2009, and the district court held that the petition
was timely because it found that White discovered the conflict-of-interest form in
January 2009. It based this finding on White’s affidavit stating that he received the
form in January 2009.

       The State contends that White’s affidavit is refuted by the subsequent
evidentiary hearing, in which he and Smallwood both testified that White received
the form in either 2007 or 2008. However, these statements alone do not prove that
the district court’s finding was clearly erroneous. Neither White nor Smallwood
remembered the exact date that White received the form. In fact, White also testified
that he received it after he filed his original habeas petition. Because he filed that
petition on February 29, 2008, this means he could not have received the form in
2007. Moreover, as the State acknowledges, Smallwood’s testimony was
inconsistent, and he admitted to lying about who gave him the form.



                                          -5-
      At most, it is unclear when White received the form. But even where we have
reason to doubt compliance with the statute of limitations, we may proceed to the
merits in the interest of judicial economy. See Shelton v. Purkett, 563 F.3d 404, 407
(8th Cir. 2009) (“[I]nstead of remanding for further development of the
non-jurisdictional statute of limitations defense, we proceed directly to the merits of
Shelton’s habeas corpus petition.”); Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir.
2006) (holding that even though “[i]t is doubtful that Trussell filed his petition within
the one-year limitations period . . . we shall, in the interest of judicial economy,
proceed to the merits of Trussell’s petition”). Accordingly, we proceed to address the
merits of White’s claims.5

                                           B.

       “Under Brady v. Maryland, ‘suppression by the prosecution of evidence
favorable to an accused . . . 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.’” United States v. Pendleton, 832 F.3d 934, 940 (8th Cir. 2016) (quoting
Brady, 373 U.S. at 87). “[E]vidence 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.” United States v. Keys, 721 F.3d 512, 520 (8th Cir. 2013)
(quotations omitted). “A reasonable probability of a different result is shown when
the government’s failure to disclose undermines confidence in the outcome of the



      5
        Likewise, although the State argues that White’s claims have been
procedurally defaulted, we decline to address this issue. See Dodge v. Robinson, 625
F.3d 1014, 1017 n.1 (8th Cir. 2010) (“Since we can dispose of both claims on the
merits, we do not address the issue of procedural default.”); see also 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies available
in the courts of the State.”).

                                          -6-
trial.” United States v. Jeanpierre, 636 F.3d 416, 423 (8th Cir. 2011) (citation
omitted).

       Brady’s disclosure mandate extends to “agreements or understandings between
the government and a witness for leniency in exchange for testimony.” United States
v. Rushing, 388 F.3d 1153, 1158 (8th Cir. 2004) (citing Giglio v. United States, 405
U.S. 150, 154-55 (1972)). And, under Napue v. Illinois, “a State may not knowingly
use false evidence, including false testimony, to obtain a tainted conviction.” Napue,
360 U.S. at 269.

                                           1.

      The district court found “from a review of the evidence, and after having an
opportunity to observe the demeanor of the witnesses at the habeas hearing, that no
formal or tacit agreement existed between the state and Shockley.” Nothing in the
record suggests that this factual finding was clearly erroneous.

      At the evidentiary hearing, Kennell’s counsel testified that the notation he
made on his conflict-of-interest form may have meant only that Taaffe told him
“we’re trying to negotiate a plea agreement.” Taaffe verified that he did try to
negotiate a plea agreement and that Shockley received a plea offer. However,
Shockley rejected the offer, and we do “not require disclosure of rejected plea offers;
the duty to disclose is dependent upon the existence of an agreement between the
witness and the government.” Rushing, 388 F.3d at 1158.

       In addition, although Taaffe testified that the prosecutor “hinted at a nolle,” he
clarified that he did not believe that a “secret deal” existed. The prosecutor
steadfastly denied making any such hint, and the court found his testimony credible.
Moreover, there was no “nolle.” The prosecution did not dismiss the charges after
Shockley testified at White’s trial, and Taaffe did not mention any contrary

                                          -7-
understanding at sentencing. Rather, Taaffe stressed to the sentencing judge that
there was “no agreement” and “no quid pro quo” in exchange for Shockley’s
testimony against White.

       White also points out that Shockley reached an agreement with the State to
testify against his brother in an unrelated case, and he argues that the jury should have
heard about this agreement because it would demonstrate Shockley’s willingness to
make any deal to stay out of prison. However, there is no evidence regarding any of
the terms of this agreement. During the evidentiary hearing, Shockley admitted that
he agreed to testify against his brother, but he denied that he did so in order to receive
anything in return. Rather, he insisted that his brother had instructed him to testify.

       In sum, the district court did not clearly err in finding that Shockley received
no hint, deal, or agreement promising favorable consideration in exchange for his
testimony against either White or his brother. Without any such agreement, there is
nothing that the State could have suppressed. As a result, the State also could not
have knowingly used false testimony, because Shockley’s testimony that he did not
receive a deal or expect to “get anything” was not false. Indeed, without a hint or
deal, even if Shockley did expect to get something, the State could not have known
of Shockley’s expectation. Accordingly, the State did not violate Brady or Napue by
failing to disclose an agreement that did not exist.

                                            2.

        The district court assumed that the financial assistance provided to Shockley
for staying in a hotel for one week and relocating to another apartment was Brady
material that should have been disclosed. Likewise, we assume without deciding that
this financial assistance was subject to Brady’s disclosure mandate. Nevertheless, the
failure to disclose this financial assistance did not violate Brady because it does not
undermine confidence in the verdict.

                                           -8-
      At the evidentiary hearing, Shockley explained that the police moved him to
the hotel because he had been receiving threats. He also testified that he received
food vouchers but that he did not know who paid for either the hotel or the vouchers
and that he never received cash or anything else of value. The assistance with
relocating to a new apartment was not discussed at the evidentiary hearing, but at
Shockley’s sentencing, Taaffe explained to the sentencing judge that “[h]is life has
been threatened” and that the State “moved him” so that “he’s out of that element.”

       White contends that we found a Brady violation in similar circumstances in
United States v. Librach, but that case involved cash payments that provided the
witness with an incentive to testify. See 520 F.2d 550, 554 (8th Cir. 1975) (“We have
no doubt that evidence of payments of nearly $10,000 to a witness in circumstances
providing him an incentive to change his testimony is favorable and material to the
defense . . . .”). Here, there is no evidence that this financial assistance provided
Shockley with an incentive to testify. Rather than cash, Shockley received a hotel
stay, food vouchers, and assistance moving out of a neighborhood where he was
receiving threats. Shockley received this assistance in 2002, and White’s trial did not
occur until January 2004. Furthermore, Shockley testified that he did not know who
paid for this assistance and that, in any case, he was motivated to testify in order to
get “revenge” for his friend Chew’s death.

      Moreover, as the district court noted, disclosure of this assistance actually
could have hurt White’s defense at trial. Specifically, evidence that Shockley
received threats could have invited testimony or speculation by the jury that White
had urged individuals to harm Shockley to prevent him from testifying. Under these
circumstances, we detect no error in the district court’s conclusion that this
nondisclosure does not undermine confidence in the verdict. Accordingly, the State
did not violate Brady by failing to disclose this financial assistance.



                                         -9-
                                        III.

      For the foregoing reasons, we affirm the denial of White’s petition for habeas
corpus.
                      ______________________________




                                       -10-
