                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 05a0198p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                      X
                              Petitioner-Appellant, -
 EDWARD JEROME HARBISON,
                                                       -
                                                       -
                                                       -
                                                            No. 02-5392
          v.
                                                       ,
                                                        >
 RICKY BELL, Warden,                                   -
                             Respondent-Appellee. -
                                                      N
                        Appeal from the United States District Court
                   for the Eastern District of Tennessee at Chattanooga.
                     No. 97-00052—Curtis L. Collier, District Judge.
                                     Argued: December 2, 2004
                                 Decided and Filed: April 29, 2005
                        Before: SILER, CLAY, and COOK, Circuit Judges.
                                         _________________
                                              COUNSEL
ARGUED: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee,
for Appellant. Gordon W. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee. ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER
SERVICES, Knoxville, Tennessee, Rosemarie L. Bryan, SHUMACKER, WITT, GAITHER &
WHITAKER, Chattanooga, Tennessee, for Appellant. Gordon W. Smith, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
        SILER, J., delivered the opinion of the court, in which COOK, J., joined. CLAY, J. (pp. 13-
21), delivered a separate dissenting opinion.
                                         _________________
                                             OPINION
                                         _________________
        SILER, Circuit Judge. Petitioner Edward Jerome Harbison was convicted of first-degree
murder, second-degree burglary, and grand larceny and was sentenced to death. After unsuccessful
direct appeal and state post-conviction proceedings, Harbison filed a petition for a writ of habeas
corpus in the United States District Court for the Eastern District of Tennessee. Harbison argues
that the district court erred in failing to issue the writ. Certificates of appealability were granted to
allow consideration of Harbison’s claims relating to an alleged Brady violation, ineffective
assistance of appellate counsel, and conflict of interest of appellate counsel. For reasons discussed
hereafter, the denial of Harbison’s petition is AFFIRMED.


                                                   1
No. 02-5392           Harbison v. Bell                                                         Page 2


I.     BACKGROUND
        On January 15, 1983, Frank Russell returned home from work to discover that his wife,
Edith, had been murdered. The Russells rented an apartment at the back of their Chattanooga,
Tennessee, house to a tenant who, at that time, was away on vacation, and Mrs. Russell’s body was
found inside this apartment. Medical examiners determined that the cause of her death was
“massive multiple skull fractures with marked lacerations of the scalp and head, expelling brain
tissue and literally crushing the victim’s face and disfiguring her beyond recognition.” State v.
Harbison, 704 S.W.2d 314, 316 (Tenn. 1986). Mrs. Russell was last seen that afternoon at a
neighborhood market, where witnesses spoke with her between approximately 2:30 and 2:45 p.m.
Bags of groceries and ignition keys were found in Mrs. Russell’s car, which was parked in the
driveway, when her body was discovered near midnight. Nothing in the record indicates a precise
time of death. The logical inference is that Mrs. Russell was killed a short time after purchasing the
groceries in the middle of the afternoon, or else she would have taken them and her keys out of her
car. Moreover, the porch lights were off. Her husband said she always left the outside lights on for
protection.
        The Russells’ house and the rented apartment were burglarized. Missing items included “an
RCA XL-100 television, two cable television converters, a quartz heater, a Polaroid 210 camera, a
silver Cross pen and pencil set, a jeweler’s loop, a jewelry box, antique jewelry, a marble vase, and
Mrs. Russell’s purse.” Id. The police later found the quartz heater, the Polaroid camera, the pen and
pencil set, and the jeweler’s loop in the residence of Janice Duckett, who was Harbison’s girlfriend
and co-defendant David Schreane’s sister. The jeweler’s loop was found in Harbison’s shaving kit.
In an adjacent unoccupied apartment, the police found Mrs. Russell’s purse, a jewelry box, and two
large paper bags containing antique glassware and brassware. The stolen television was found in
the residence of Schreane’s girlfriend.
       Schreane was taken into custody and questioned on February 21, 1983, when he led police
to the missing marble vase. Chemical testing later revealed the presence of blood on the vase.
Furthermore, debris that was vacuumed from the carpet in Harbison’s car revealed crystalline calcite
fragments that were consistent with the marble vase.
        Harbison also was arrested on February 21, 1983. In a taped statement, he confessed to
killing Mrs. Russell. Harbison stated that after he drove his girlfriend home from work, he and
Schreane went to the Russell home, determined that it was empty, and used a screwdriver to break
into the residence. While he and Schreane were carrying the stolen items from the house and the
apartment to their car, Mrs. Russell returned home. Harbison contended that he thought Mrs.
Russell was reaching for a gun, so he grabbed her. He stated that he hit her with the marble vase,
“at the most” two times.
        At his trial, Harbison testified that he had not killed Mrs. Russell and that he was not at the
Russell house on the day of the murder. He said that he was at his girlfriend’s home that afternoon
and evening. He asserted that his confession was coerced, and that the police had threatened to
arrest his girlfriend and take away her children if he did not confess. He further testified that the
police had told him what to say and that his taped confession, which was played to the jury, had been
altered. Finally, he testified that he had purchased the jeweler’s loop at a pawn shop.
        William Carter and Vaughn Miller represented Harbison at trial. Before the trial, they made
the following discovery requests for exculpatory evidence: a motion for discovery (4/13/1983), a
motion for exculpatory evidence (4/13/1983), and a motion to compel disclosure (10/21/1983). As
discussed below, they did not receive certain Chattanooga Police Department records, however.
No. 02-5392           Harbison v. Bell                                                           Page 3


        Harbison was convicted and sentenced to death. At sentencing, his trial attorneys presented
little mitigation evidence. The only witness offered was Harbison’s mother, who briefly testified
that he was a good son, was regularly employed, and completed the eleventh grade of school.
        After Harbison’s trial attorneys filed a motion for new trial, Harbison requested new counsel,
and the court appointed Rodney Strong. Strong filed an amendment to the motion for new trial,
adding allegations of ineffective assistance of counsel. He asserted that Harbison’s trial attorneys
were ineffective because they failed to adequately investigate and present witnesses in support of
the defense. Strong argued on appeal that the trial attorneys had made no effort to locate witnesses
to pursue Harbison’s alibi defense. The conviction and sentence were affirmed by the Supreme
Court of Tennessee. Harbison, 704 S.W.2d at 319-20.
         Thereafter, Harbison filed a post-conviction petition in the trial court. Harbison argued, inter
alia, that Strong, his appellate counsel, was ineffective because he did not argue that Harbison’s trial
attorneys were ineffective for failing to investigate his family background for purposes of mitigation.
       At the post-conviction hearing, Harbison presented evidence of a previously undisclosed
family tragedy. When he was a child, his fourteen-year-old sister shot and killed her two young
children. She was committed to a state hospital, where she committed suicide. Harbison, his
mother, and another sister testified that the family was affected by these events. Harbison stated that
he “couldn’t rightly say . . . what kind of impact it had on [him].” In addition, they testified that
Harbison’s trial attorneys had never asked about the family background.
        Carter, one of Harbison’s trial attorneys, also testified that he and Miller did not complete
a significant investigation into Harbison’s family background and only discussed in passing a
possible psychological examination for Harbison. Carter further acknowledged that they had only
briefly prepared Harbison’s mother for her sentencing testimony during a break at trial.
      The trial court dismissed Harbison’s post-conviction petition as being without merit. The
Tennessee Court of Criminal Appeals affirmed this decision, Harbison v. State, No. 03C01-9204-
CR-00125, 1996 WL 266114 (Tenn. Crim. App. May 20, 1996), and the Supreme Court of
Tennessee denied further review.
        In February 1997, Harbison moved in federal district court for appointment of counsel and
stay of execution. These motions were granted. The appointed counsel made a public-records
request for the Chattanooga Police Department’s records relating to the Russell murder. These
documents were received in October 1997, and it was determined that documents in the police file
were not in the district attorney’s file.
        The police files contained evidence regarding Ray Harrison, who initially was a suspect in
this case. Harrison previously was represented by Rodney Strong, who later was appointed to be
Harbison’s appellate counsel. Harrison, upon Strong’s advice, refused to take a polygraph
examination concerning Russell’s murder. Strong did not disclose to Harbison his prior
representation of Harrison, however.
        The police files indicate that Harrison’s wife told David Boss that Harrison had admitted to
her that he was at the Russell house at the time of the murder. According to Boss, she said, “He was
in the house, he didn’t kill her but . . . when the door opened they ran.” Boss told the police that
Harrison was shaky and “scared to death” the day after the murder. Another witness stated that
Harrison’s wife was concerned because she could not find the jacket Harrison was wearing the day
of the murder. These files also indicate that Harrison had a disagreement with Mrs. Russell the week
before her murder concerning a ring that he attempted to sell to her. Mrs. Russell took the ring to
an appraiser, who determined that the ring was fake. Harrison suspected Mrs. Russell switched the
real ring for a fake one. The file indicated that Harrison associated with men who lived in the Lynn
No. 02-5392              Harbison v. Bell                                                       Page 4


house, which was across the street from the Russells. Schreane had previously admitted that he was
smoking marijuana with Linda Lynn in a parked car in front of the Lynn house on the day of the
murder, thus establishing a very tenuous connection between Harrison and Schreane. Finally, the
file indicated that Harrison previously was involved in a similar burglary, in which a home owner
returned and a struggle ensued.
        The police files also contained information about Schreane, who implicated Harbison in the
crime. Prior to Harbison’s detainment, Schreane told a witness that Harbison, who was dating
Schreane’s sister, had attempted to start a relationship with Schreane’s girlfriend when Schreane was
arrested on an unrelated offense. According to a witness, Schreane asserted that Harbison had killed
Mrs. Russell and that he would “be up there with him for that murder case.”
        Harbison filed a petition for writ of habeas corpus in November 1997. He asserted twenty-
six claims as grounds for relief, including a Brady claim, a claim of conflict of interest of appellate
counsel who had previously represented a suspect in the case, and an ineffective-assistance-of-
appellate-counsel claim for failure to raise on direct appeal the issue that trial counsel was
ineffective for failing to investigate Harbison’s background. At the time, the Brady and conflict-of-
interest claims had not yet been advanced to a state court.
        The district court dismissed Harbison’s petition as meritless in March 2001. It granted
Harbison a COA for the following issues: 1) whether the prosecution withheld material, exculpatory
evidence from Harbison in violation of Brady v. Maryland, 373 U.S. 83 (1963); and 2) whether
Harbison received ineffective assistance of appellate counsel because counsel did not argue on direct
appeal that his trial attorneys rendered ineffective assistance by failing to adequately investigate and
present evidence of his troubled family background. This court granted Harbison a COA for one
additional issue: whether appellate counsel labored under a conflict of interest.
        In June 2001, after the district court denied Harbison’s petition, he filed a motion to reopen
his state post-conviction proceeding. He later requested that the pleadings be treated as a petition
for a writ of error coram nobis. Claims involving the issues for which certificates of appealability
have been granted were considered in these state proceedings. In March 2004, after holding an
evidentiary hearing, the state court dismissed the motion to reopen, noting that the circumstances
in which a post-conviction  proceeding could be reopened were strictly limited by Tenn. Code Ann.
§ 40-30-217.1 The court also dismissed Harbison’s petition for writ of error coram nobis because
it was not timely filed and it determined that too much time had elapsed between Harbison’s
discovery of the evidence and his filing in state court. The court concluded that there was no due
process violation because Harbison had been afforded a reasonable amount of time to litigate these
issues.
       In May 2004, Harbison moved this court to supplement the record with the new state-
proceeding evidence and/or to hold in abeyance pending the resolution of the state-court appeal.
These motions were denied, and the record before the district court is considered in this appeal.
II.    STANDARD OF REVIEW
        Harbison filed the petition for writ of habeas corpus after the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Therefore, this court’s review is limited
by 28 U.S.C. § 2254(d), as amended by AEDPA. Under this provision, an application for writ of
habeas corpus may be granted only if the adjudication of the claim in the state-court proceeding
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly


       1
           This provision has been renumbered to § 40-30-117 (2003).
No. 02-5392           Harbison v. Bell                                                         Page 5


established Federal law, as determined by the Supreme Court of the United States,” or if the state
court adjudication “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
        The Supreme Court has emphasized that the statutory phrase “clearly established Federal
law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), “refers to
the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000) (emphasis added).
Once the “clearly established Federal law” has been identified, this court considers whether the
state-court decision is “contrary to” such law. A state-court decision is contrary to clearly
established law if that court “arrive[d] at a conclusion opposite to that reached by [the Supreme
Court] on a question of law or if the state court decide[d] a case differently than [the Supreme Court]
has on a set of materially indistinguishable facts.” Id. at 413. The court also considers whether the
state court’s decision involved an unreasonable application of clearly established Federal law. This
occurs if the court “identifie[d] the correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applie[d] that principle to the facts of the prisoner’s case.” Id. It is
important to note, however, that “an unreasonable application of federal law is different from an
incorrect or erroneous application of federal law.” Id. at 412. This court must determine “whether
the state court’s application of clearly established federal law was objectively unreasonable.” Id.
at 409.
III.   DISCUSSION
A.     Ineffective Assistance of Appellate Counsel
         Harbison asserts that Strong, who represented him in his motion for new trial and on direct
appeal, was ineffective because he failed to argue that Harbison’s trial attorneys were ineffective
for failing to investigate and present evidence of Harbison’s family background. This claim was
asserted in Harbison’s post-conviction petition. The Tennessee Court of Criminal Appeals affirmed
the trial court’s dismissal of this claim on the merits, and the Supreme Court of Tennessee denied
Harbison’s request for further review.
         The Tennessee Court of Criminal Appeals determined that the performance of Harbison’s
trial attorneys did not fall below an objective standard of competency. The court considered, inter
alia, the fact that the trial attorneys had no knowledge that Harbison or any of his family members
had a history of mental illness. The court also noted that the mental illness information provided
in the post-conviction hearing related solely to Harbison’s family and not directly to Harbison
himself. The court considered the analysis in Strickland v. Washington, 466 U.S. 668, 687 (1984),
and determined that the trial attorneys’ performance was not deficient; therefore, the court did not
discuss whether Harbison was prejudiced by the allegedly deficient performance of his trial
attorneys. The court concluded that, because the trial attorneys’ performance was not ineffective,
Strong’s performance also was not ineffective. Harbison was not prejudiced by an alleged failure
to raise the ineffective assistance claim on direct appeal.
        “A defendant is entitled to the effective assistance of counsel in his first appeal of right.”
Mapes v. Tate, 388 F.3d 187, 191 (6th Cir. 2004). The performance of an appellate counsel is
properly reviewed under the Strickland standard. “To establish ineffective assistance of counsel,
it must be shown that counsel’s performance was deficient and that the deficient performance
prejudiced the defense so as to render the trial unfair and the result unreliable.” Id. (citing
Strickland, 466 U.S. at 687).
       Although Harbison’s trial attorneys’ failure to investigate Harbison’s family background
arguably may have been deficient performance, the evidence presented in Harbison’s state court
No. 02-5392               Harbison v. Bell                                                        Page 6


post-conviction proceeding did not establish prejudice. Therefore, Harbison failed to establish
ineffective assistance of counsel. “[A]ny deficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance under the Constitution.” Strickland, 466
U.S. at 692. Harbison “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. At
Harbison’s post-conviction hearing, he, his mother, and his sister testified regarding another sister’s
murder of her children and her subsequent suicide. While they testified that Harbison was affected
by these events, their testimony was vague and did not address any manifestations of this impact.
Indeed, Harbison himself testified that he “couldn’t rightly say . . . what kind of impact it had on
[him].” Thus, this evidence was insufficient to create a reasonable probability that the result would
have been different had this information been presented at sentencing. Because Harbison did not
demonstrate that he was prejudiced by Strong’s actions, the state court’s determination that Harbison
had not established ineffective assistance of counsel was not an unreasonable application of clearly
established federal law. See Williams, 529 U.S. at 413.
B.      Brady Claim
        To demonstrate that the withholding of police reports was a Brady violation, Harbison must
prove that (1) the evidence at issue is favorable to him; (2) the State, either willfully or
inadvertently, suppressed that evidence; and (3) prejudice ensued. Strickler v. Greene, 527 U.S.
263, 281-82 (1999). “[T]here is never a real ‘Brady violation’ unless the nondisclosure was so
serious that there is a reasonable probability that the suppressed evidence would have produced a
different verdict.” Id. at 281. To determine whether there is such probability, the withheld evidence
must be considered collectively. Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir. 2003) (citing
Kyles v. Whitley, 514 U.S. 419, 436 (1995)).
        The district court concluded that Harbison’s Brady claim was procedurally defaulted. As
discussed below, we agree. “Where a defendant has procedurally defaulted a claim by failing to
raise it on direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’” Bousley v.
United States, 523 U.S. 614, 622 (1998) (internal citations omitted).
       Harbison first asserted this alleged Brady violation in proceedings before the district court
in November 1997. At that time, Tenn. Code Ann. § 40-30-202(c)2 provided that “[i]n no event may
more than one (1) petition for post-conviction relief be filed attacking a single judgment.” Because
Harbison had previously filed one petition for post-conviction relief, he was not permitted to file a
second petition. Furthermore, because the circumstances in which a post-conviction        proceeding
could be reopened were strictly limited by Tenn. Code Ann. § 40-30-217,3 Harbison was unable to
reopen his post-conviction proceedings in 1997. See Harris v. State, 102 S.W.3d 587, 591 (Tenn.
2003) (“A claim that the State suppressed or failed to disclose exculpatory evidence in violation of
Brady simply is not one of the statutory grounds for reopening a post-conviction proceeding.”).
        Harbison also would not have been able to pursue a petition for a writ of error coram nobis
at the time he filed in the district court. “Coram nobis claims may be based upon any ‘newly
discovered evidence relating to matters litigated at the trial’ so long as the petitioner also establishes
that [he] was ‘without fault’ in failing to present the evidence at the proper time.” Id. at 592-93.
These claims must be filed within one year after a conviction becomes final. Tenn. Code Ann. § 27-


        2
            This provision has been renumbered to § 40-30-102 (2003).
        3
            This provision has been renumbered to § 40-30-117 (2003).
No. 02-5392               Harbison v. Bell                                                                    Page 7


7-103. The Tennessee courts have, at times, allowed exception to strict enforcement of statutes of
limitations, however. “[D]ue process requires that potential litigants be provided an opportunity for
the presentation of claims at a meaningful time and in a meaningful manner.” Burford v. State, 845
S.W.2d 204, 208 (Tenn. 1992). As noted by the Supreme Court of Tennessee, “due process may
prohibit strict application of the statute of limitations in a post-conviction case ‘when the grounds
for relief, whether legal or factual, arise after . . . the point at which the limitations period would
normally have begun to run.’” Sample v. State, 82 S.W.3d 267, 272 (Tenn. 2002) (quoting Sands
v. State, 903 S.W.2d 297, 301 (Tenn. 1995)).
        When such a case is evaluated, a “court must determine whether application of the
limitations period would deny the petitioner a reasonable opportunity to present the claim by
balancing the liberty interest in collaterally attacking constitutional violations occurring during the
conviction process . . . against the State’s interest in preventing the litigation of stale and fraudulent
claims.” Id. at 272-73 (quotations omitted). The Supreme Court of Tennessee has refused “to apply
a bright-line period of time in which to raise later-arising issues be it one year or three,” Wright v.
State, 987 S.W.2d 26, 30 (Tenn. 1999), but has instead instructed that the analysis be completed “in
light of the specific facts of the case.” Id.
        Although Harbison did not receive the police files that contained the evidence that is the
basis of this claim until October 1997, he could have requested and obtained those files more than
five years earlier. In January 1992, the Tennessee Court of Appeals held in an unpublished decision
that police investigation files were not exempt from disclosure under the Public Records Law.
Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, No. 01-A-019104CH00150, 1992 WL 12217
(Tenn. Ct. App. Jan. 29, 1992). Based upon the Woodall decision, the Supreme Court of Tennessee
has recognized January     29, 1992, as a date upon which police files became available to a post-
conviction petitioner.4 Wright, 987 S.W.2d at 29.
         Harbison alleges in his brief that “counsel attempted post-trial to gain access to the police
records despite state law prohibiting their disclosure,” but “one of the investigating detectives and
the police chief testified post-trial that the police records could not be located.” A review of the
transcripts to which Harbison refers suggests the individuals were simply unaware of a particular
file’s location, not that these individuals had been charged with the task of locating that particular
file. At the post-conviction examination, Detective Wilhoit simply stated, “I don’t have any
knowledge as to [Detective Foster’s file’s] location. It’s an old case and normally we keep our old
files after the case is over with, so what he did with it I have no information.” The following
exchange occurred when Chief Detective Davis was questioned at a post-conviction evidentiary
hearing:
         Q:     Do you have access to any of the former files at the police department where
         you could refer to these?
         A:     No.
         Q:     We’ve been told by C.L. Wilhoit that since Ed Foster’s death that they have
         apparently lost his file on Harbison. Would there not be any other?
         A:     I don’t see how they could have lost it. Of course, I don’t know.




         4
            Harbison argues that these files were not available to him until the published decision of Wooden v. State,
898 S.W.2d 752 (Tenn. Crim. App. 1994), in December 1994. The Wooden court merely asserted, however, that prior
to yet another unpublished opinion, Freeman v. Jeffcoat, No. 01A01-9103-CV-00086, 1991 WL 165802 (Tenn. Ct. App.
Aug. 30, 1991), “police routinely denied [defendants] access to the file.” Wooden, 898 S.W.2d at 754. The court noted
that Wooden had been able to obtain police records under the Tennessee Public Records Law pursuant to the decision
in Freeman.
No. 02-5392           Harbison v. Bell                                                            Page 8


       Q:       That’s what he testified to is that they lost it because they couldn’t bring it
       to court. Would you have any idea that they would have another one anywhere that
       we might be able to get access to it?
       A:       They have it if they’d just find it.
       Q:       Okay. So you think they’ve misplaced it as opposed to losing it?
       A:       I know it was still there when I left.
       Q:       When did you leave?
       A:       ‘83.
       Q:       Okay. Of course, Detective Foster has died since then?
       A:       Yes, but there is no way for it to have got out of there unless somebody stole
       it. It’s still there.
        If anything, the exchanges between Harbison’s attorney and Detective Wilhoit and Chief
Detective Davis would have indicated to the attorney that there was a very strong possibility that
the relevant files would be available if requested through the appropriate channels.
         Furthermore, because disclosure of the police files was prohibited in 1991, when Harbison
had last requested them, it is not unreasonable to expect that he again would request them within a
reasonable time after they could be released. The files became available in 1992, but Harbison
waited another five years to request them. As a result, by the time Harbison filed his petition in the
district court in 1997, Tennessee courts were no longer able to consider a petition for writ of error
coram nobis. The aforementioned statements from Detective Wilhoit and Chief Detective Davis are
insufficient to justify the five-year delay. It cannot be said that the basis of this claim was
“reasonably unknown” to petitioner’s lawyers.
         Harbison argues his Brady claim was not procedurally defaulted because this procedural
scheme is neither adequate nor independent. See, e.g., Hicks v. Collins, 384 F.3d 204, 211 (6th Cir.
2004) (“[T]he state procedural rule must have been an adequate and independent state procedural
ground upon which the state could rely to foreclose review of a federal constitutional claim.”). In
Hutchinson v. Bell, this court recognized that “Tennessee courts consistently enforce a procedural
scheme that encompasses both the one-year limitations period and a court-recognized procedure for
tolling that statute when specific due process grounds are presented.” 303 F.3d 720, 738 (6th Cir.
2002). Harbison asserts that these procedural rules do not represent adequate state procedural
grounds because the Burford principle may create inconsistent results. He further asserts that the
procedural grounds are not independent of federal law because application of Burford to a later-
arising Brady claim requires consideration of the merits of the Brady claim. “In habeas, if the
decision of the last state court to which the petitioner presented his claim fairly appeared to rest
primarily on resolution of those claims, or to be interwoven with those claims, and did not clearly
and expressly rely on an independent and adequate state ground, a federal court may address the
petition.” Coleman v. Thompson, 501 U.S. 722, 735 (1991). An evaluation of the adequacy and
independence of a hypothetical state court decision is unnecessary in this case, however:
       [I]f the petitioner failed to exhaust state remedies and the court to which the
       petitioner would be required to present his claims in order to meet the exhaustion
       requirement would now find the claims procedurally barred . . . there is a procedural
       default for purposes of federal habeas regardless of the decision of the last state
       court to which the petitioner actually presented his claims.
Id. at 735, n.1 (emphasis added).
        Because this claim has been procedurally defaulted, it may be considered on its merits only
if Harbison demonstrates cause and prejudice. Bousley, 523 U.S. at 622. Harbison argues that the
State’s failure to provide him with the police files demonstrates cause. He asserts that “[t]he cause
No. 02-5392                Harbison v. Bell                                                                      Page 9


inquiry . . . turns on events or circumstances external to the defense.” Banks v. Dretke, 540 U.S.
668, 696 (2004) (quotation omitted). In Banks, the Supreme Court rejected a state’s argument that
the cause inquiry should revolve around the petitioner’s conduct, which in that case included an
alleged lack of appropriate diligence in pursuing a Brady claim. Id. at 695. The Court noted that
“[a] rule . . declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system
constitutionally bound to accord defendants due process.” Id. at 696. Banks, however, addressed
a situation in which the prosecution had repeatedly asserted that all Brady material was disclosed,
but nevertheless continued to conceal such material. In particular, the Court noted that “[e]ach time
[a witness] misrepresented his dealings with the police, the prosecution allowed that testimony to
stand uncorrected.” Id. at 672. The Court concluded: “In short, because the State persisted in hiding
[the witness’s] informant status and misleadingly represented that it had complied in full with its
Brady disclosure obligations, Banks had cause for failing to investigate, in state post conviction
proceedings, [the witness’s] connections to [the police].” Id. at 693. There is no evidence       of such
prosecutorial concealment and misrepresentation in Harbison’s case, however.5 At the post-
conviction hearing, the police officers did not indicate that the files did not exist or that they would
refuse to provide them to Harbison, but rather that they did not know where the files were located.
There is no evidence in the record before the district court that those individuals were charged with
the task of locating that particular file. Nor has Harbison presented any evidence that would indicate
that the files were intentionally concealed.
        If Harbison had requested the police files within a reasonable time, he would have had
various options for state-court consideration of this claim. Because his post-conviction proceeding
was on appeal through 1996, he had the opportunity to move to remand for consideration of new
evidence. See Laney v. State, 826 S.W.2d 117, 118 (Tenn. 1992). In addition, had he requested the
files within a reasonable time, he could have filed  a petition for writ of error coram nobis or, prior
to 1995, an additional post-conviction petition.6 By the time Harbison filed the petition for writ of
habeas corpus in federal court, however, these opportunities were no longer available to him.
Because Harbison has failed to demonstrate cause for his failure to argue this claim before the state
courts, this claim may not be considered by this court.
        Although Harbison has not demonstrated cause for his failure to pursue these claims in state
court, we nevertheless here address the issue of prejudice to Harbison that may be attributed to the
withholding of this evidence. Harbison has not demonstrated such prejudice. While the relevant
evidence may raise some question about Harrison’s potential proximity to the Russell murder and
Schreane’s motivation in identifying Harbison as the murderer, this evidence is not sufficient to
create a reasonable probability that the result of the trial would have been different. The evidence


         5
            Similarly, the prosecution deliberately withheld material evidence in Freshwater v. State, No. W2003-01343-
CCA-R3-CO, 2004 WL 1944140, *9 (Tenn. Crim. App. Sept. 1, 2004). In Freshwater, the Tennessee Court of Criminal
Appeals determined that the “delay in obtaining the [Brady] evidence [was] not attributable to the fault of the petitioner
or her attorneys,” even though the claim was discovered far after Freshwater’s conviction. Id. Significantly, the Brady
material in this case was discovered only after Freshwater had escaped from prison and had remained at large for over
thirty years. The court noted:
          Indeed, if the State’s position in this appeal were to prevail, criminal defendants, in order to protect
          their rights to file a coram nobis petition, would be required in every case to examine every
          prosecution file following their convictions in order to determine whether exculpatory evidence was
          withheld. We cannot believe this is something the State really wants. “[T]he State’s finality interest
          is seriously compromised when the prosecution has suppressed evidence in violation of its
          constitutional duty and is directly responsible for causing the delay in finality.”
Id. (quoting Harris v. State, 102 S.W.3d 587, 602 (Tenn. 2003) (Anderson, J. dissenting)).
          Again, we observe that Freshwater involved the intentional concealment of Brady material. As previously
discussed, there is no evidence of such prosecutorial concealment in Harbison’s case.
         6
             Prior to the 1995 amendments, petitioners were not limited to only one post-conviction petition.
No. 02-5392               Harbison v. Bell                                                                     Page 10


concerning Harrison reveals that he was initially a suspect in the Russell murder, and this evidence
could have been used by Harbison’s counsel in an attempt to shift culpability to another individual.
However, this evidence, even when considered in combination with allegations regarding Schreane’s
reasons for identifying Harbison, does not create a reasonable doubt that the trial would have ended
differently. The district court meticulously analyzed this evidence and found that it was not a Brady
violation and it was not material to the defense. We agree. Harbison’s confession to the murder is
strong evidence of his guilt, which this new evidence was unlikely to overcome.
       Although the claim has been procedurally defaulted, and we therefore do not directly reach
the merits of this case, the above cause and prejudice discussion parallels requirements for the Brady
analysis. Because Harbison has not demonstrated such cause and prejudice, he has not established
a Brady violation.
         While we decide the case on procedural default, as did the district court, it makes little sense
to discuss in detail the Brady issue. Nevertheless, certain explanations may be in order. First, the
district court found that even if the alleged claim was not procedurally defaulted, there was no Brady
violation. Second, the district court found that evidence involving the victim’s nefarious activities
of buying and selling stolen merchandise was not relevant to the case. Third, on the evidence
involving Schreane, the court found that either most of the evidence was admitted at trial, was not
material, or was not wholly in the control of the prosecution. As the dissent observes, the district
court found that the statement by Schreane that he was angry at Harbison for making romantic
overtures to Schreane’s girlfriend could not have altered the judgment of the jury, because Schreane
did not testify at trial. Finally, concerning the evidence which involved Harrison, it was not
material, because Harbison raised an alibi defense and testified that his confession to the crime was
false.
         We agree with the district court on the merits, but we will further discuss some of these
details in our explanation of this ruling. Several assertions in the dissent need to be clarified. First,
the dissent states that Charlene Harrison told Detective Foster that her husband was with the Lynns,
who lived across the street from the victim, on the day of the murder. That is correct in part, but the
full statement was that “she knew Ray did not kill Ms. Russell because he spent all evening with
Tommy and Larry Lynn       in Ft. Oglethorpe and they returned Saturday night at between 10:30 and
11:00 P.M. on 1-15.”7 Thus, no one put Harrison at the Lynn house on the day of the murder, unlike
the admission of Schreane that he smoked marijuana with Linda Lynn in front of the house on the
afternoon of the murder.
        Second, although Charlene Harrison placed Ray Harrison at the scene of the crime, she said
that he was there with at least one other person. This did not help Harbison’s alibi, for Harbison and
Schreane both could have been with Harrison at the time. She never did identify who the other
person or persons were. Moreover, after Boss had told the officers of his conversation with
Charlene Harrison on January 19, 1983, the officers sent an unnamed informant with a “tape” to get
Charlene Harrison to admit what she had allegedly told Boss, but she did not convey the same
information and would not confirm the information previously received. Third, the dissent says that
Boss asserted that Harrison was “scared” the morning after the murder. However, there are several
reasons why Harrison might be concerned by the interest from the police in searching his residence
with a search warrant, because he was involved in drug trafficking and was wanted by the authorities
in Florida, where he was eventually arrested. In fact, Harrison allegedly told Boss that when he

         7
           The dissent suggests that this put Harrison “in close proximity to the Russell home at the time of Edith
Russell’s murder, which took place at some point before midnight.” That depends entirely upon whether Mrs. Russell
was killed near midnight, which is not a logical conclusion from the record. More likely, she was killed in the afternoon,
sometime after 2:45 p.m. Two witnesses testified that they had tried to call Mrs. Russell at 5:30 p.m., 6:30 p.m. and 8:30
p.m. without an answer on the day of the murder.
No. 02-5392           Harbison v. Bell                                                       Page 11


found the police were coming with a search warrant, he went over to his mother’s apartment and got
rid of “some pills.”
        Finally, the dissent suggests that Harbison could have used Schreane’s jailhouse statement
on cross examination of Detective Foster, as to whether the police pursued an investigation of
Harrison in light of Schreane’s motive to falsely implicate Harbison. There is a question as to the
admissibility of that statement, but even if admissible, there was some detailed investigation in the
Harrison files between January 16-31, 1983. Apparently, it was not until February 17, 1983, when
the detectives first learned that Schreane had told Omenys West that Harbison had killed Russell.
Later that day, Schreane admitted that he had been at the Russell house with Harbison on the day
of the murder. Thereafter, the police found some of the stolen items in the custody of Harbison’s
girlfriend, Schreane led police to the stolen TV set and to the murder weapon, and Harbison finally
confessed to hitting Mrs. Russell twice with the vase.
C.     Appellate Counsel’s Conflict of Interest
         Harbison claims that Strong, his appellate counsel, suffered from a conflict of interest
because he had previously represented Harrison, who was initially a suspect in the Russell murder.
As a result, Harbison argues, Strong was unable to make arguments that would support Harbison’s
assertions that he had not committed the crime. He alleges that, had Strong not been burdened by
this conflict and had he been aware of the evidence concerning Harrison in the police files, Strong
would have been able to make the argument that Harrison had opportunity and motive to commit
the crime. This claim also was not introduced before the state courts until after the district court
denied Harbison’s petition. As a result, much of the above procedural default analysis is relevant
to this claim. Harbison has failed to demonstrate cause for his failure to assert this claim until his
petition to the district court.
        Again, although Harbison has not demonstrated cause for his failure to pursue these claims
in state court, we nevertheless address the issue of prejudice to Harbison that may be attributable
to his counsel’s alleged conflict. Harbison has not demonstrated such prejudice. A possibility of
conflict is insufficient to establish a violation of Harbison’s Sixth Amendment rights, and no
violation occurs where the conflict is irrelevant or merely hypothetical. See Moss v. United States,
323 F.3d 445, 463-64 (6th Cir. 2003). Harbison argues that Strong rendered ineffective assistance
by not raising certain issues involving Harrison’s potential involvement in Russell’s death. Relying
on the new evidence discussed in his Brady claim, Harbison asserts that Strong failed to pursue and
present evidence concerning Harrison that could have created doubt about Harbison’s guilt.
However, as noted above, the new evidence presented concerning Harrison was unlikely to change
the result of Harbison’s trial. Furthermore, Harbison has presented no facts to demonstrate that
Strong was aware of the additional evidence concerning Harrison and that he decided not to present
the additional evidence due to his representation of Harrison. Finally, the fact that Strong
represented Harbison during his motion for a new trial and on direct appeal, rather than during the
trial, would reduce the danger posed by any conflict. Harbison has not cited any specific instances
in the record where his interests were impaired by Strong’s prior representation of Harrison.
IV.    MATTERS OUTSIDE THE RECORD
         The dissent has referenced matters which are not part of the record on review, as they are
records from the second state post-conviction review held subsequent to the judgment by the district
court herein. Inasmuch as we denied Harbison leave to supplement the record to provide the second
post-convictions materials, it would not be appropriate for us to comment about those matters. This
case is on appeal from the district court, which did not have any of those subsequent materials before
it. “We cannot consider a report that is not part of the record.” United States v. Bonds, 12 F.3d 540,
552 (6th Cir. 1993). But see Thompson v. Bell, 373 F.3d 688, 691 (6th Cir. 2004) (allowing record
No. 02-5392          Harbison v. Bell                                                    Page 12


on appeal to be supplemented under “our equitable power”), cert. granted on other grounds, 125
S.Ct. 823 (2005).
       Similarly, the dissent quotes from a subpoena directed to Wilhoit to bring with him to the
post-conviction hearing “[a]ny and all records, files or documents in his possession or in the
possession of the Chattanooga Police Department relative to the case of State of Tennessee v.
Edward Jerome Harbison, Jr.” That also is not in the record from the district court, nor was it
mentioned in Harbison’s briefs to this court. Additionally, Harbison did not ask to supplement the
record with that document under Federal Rule of Appellate Procedure 10(e). Therefore, it would
also not be appropriate to comment about that subpoena.
V.     CONCLUSION
       For the foregoing reasons, the judgment of the district court denying the writ is AFFIRMED.
No. 02-5392           Harbison v. Bell                                                       Page 13


                                         _________________
                                             DISSENT
                                         _________________
        CLAY, Circuit Judge, dissenting. I dissent because the district court should have granted
Harbison’s petition for a writ of habeas corpus on the ground that the prosecution violated Brady
v. Maryland, 373 U.S. 83 (1963). Harbison has shown cause and actual prejudice for his failure to
raise his Brady claim in state court prior to seeking habeas relief in federal court.
                                                I.
                                          Brady Violation
        Harbison’s trial counsel filed several pre-trial motions for discovery, requesting exculpatory
information and witness statements. See J.A. 24 (motion for discovery of documents “which are
material to the preparation of the defense”); J.A. 26 (motion for order compelling “the State to
furnish [Harbison] with any and all exculpatory evidence of which the State, its agents, employees,
attorney generals and law enforcement officials have knowledge that may tend to exonerate
defendant of the charge or may mitigate any punishment for him”); J.A. 28 (motion to compel
disclosure of Brady materials relevant to sentencing). Despite several court orders compelling
disclosure of these materials, the State did not produce evidence contained in Chattanooga Police
Department records favorable to the defense.
       Excerpts from the undisclosed files of Detective Larry Foster, the officer principally
responsible for investigating Edith Russell’s murder, indicate that Ray Harrison had a motive to
burglarize and/or murder Edith Russell. Ray Harrison told Detective Foster that he had tried to sell
Russell a ring the previous week, but that she did not buy it. (J.A. 918.) Harrison’s cousin, Benny
Goins, confirmed that he had given a ring to Ray Harrison a week before Russell’s death and that
Harrison was supposed to sell the ring for him. (J.A. 961-62.) Ray Harrison’s wife, Charlene, told
Detective Foster that Russell had taken the ring to a jeweler for an appraisal and purportedly
determined that it contained a fake diamond. (J.A. 1077.) Detective Foster’s interview with Ray
Harrison’s brother-in-law indicated that “Ray Harrison and Benny Goins were mad at Edith Russell
because they believed that she had ‘switched rings on Ray.’” (J.A. 978.)
        Other entries in Detective Foster’s file suggest that Ray Harrison and David Schreane (who
participated in the robbery of Russell’s home) were together on the day of the murder and in close
proximity to the Russell residence. Charlene Harrison told Detective Foster that her husband was
with the Lynns, Russell’s across-the-street neighbors, on the day of the murder. (J.A. 1077.) In
addition, David Schreane admitted that he smoked marijuana with Linda Lynn in front of the Lynns’
house during the afternoon of the murder. (J.A. 976.)
        The majority discounts this evidence because “no one put Harrison at the Lynn house on the
day of the murder.” Slip Op. at 10. As support, the majority quotes Charlene Harrison’s statement
to Detective Foster that Harrison had “‘spent all evening with Tommy and Larry Lynn in Ft.
Oglethorpe and they returned Saturday night at between 10:30 and 11:00 P.M. on 1-15.’” Id.
(quoting J.A. 1077). It is true that Charlene Harrison’s statement does not necessarily place her
husband at the Lynns’ house, but the jury could have inferred this fact from her statement.
Significantly, she did not tell Detective Foster that her husband “returned to her house” between
10:30 and 11:00 p.m., only that her husband and the Lynns “returned” between those times.
Charlene Harrison could have meant that they returned to the Lynns’ house by 10:30 or 11:00 p.m.
According to the Tennessee Supreme Court, Edith Russell’s husband discovered her dead body at
midnight. State v. Harbison, 704 S.W.2d 314, 315 (Tenn. 1986). Therefore, the undisclosed Brady
No. 02-5392           Harbison v. Bell                                                         Page 14


material reasonably could suggest that Harrison was in close proximity to the Russell home at the
time of Edith Russell’s murder, which took place at some point before midnight.
        In asserting that the possibility that Russell was murdered near midnight “is not a logical
conclusion from the record,” Slip Op. at 10 n.7, the majority inappropriately assumes the role of
factfinder and denies that the jury which actually convicted Harbison and sentenced him to death
would have been permitted to find to the contrary. Because, as the majority notes, there is nothing
in the record that indicates a precise time of death, Maj. Op. at 2, Harbison was entitled to present
the undisclosed evidence to a jury in a light most favorable to him.
       Ultimately, the majority’s view about Russell’s time of death is irrelevant because other
undisclosed evidence actually places Harrison at the scene of her murder. David Boss told
Detective Foster that Charlene Harrison had told him that Ray Harrison was actually inside Edith
Russell’s house on the night of the murder with another person. (J.A. 921-23.) She also told Boss
that Ray Harrison did not kill Russell, but that when Russell entered her house, “they” (including
Harrison) ran away. Id. Boss’s statement certainly would support a defense theory that Harrison
not only had the motive and opportunity to murder Russell, but actually participated in that crime,
thereby potentially shifting blame away from Harbison.
        The majority argues that this evidence would not have assisted Harbison’s alibi defense
because Charlene Harrison’s reference to “they” is consistent with the possibility that both Schreane
and Harbison were with Harrison at the time of the murder. Slip Op. at 10. Although the majority’s
characterization of this statement is plausible, Harbison should have been afforded the opportunity
to present an equally plausible and reasonable alternative to the jury that supported his alibi defense:
that only Harrison and Schreane were present at Edith Russell’s murder.
       Boss also told Detective Foster that he saw Ray Harrison on the morning after the murder
and observed him to be “a little scared and shaky” and “scared to death.” (J.A. 926.) Harrison
asked Boss “if the polices [sic] had been there” and said “that they were comin’ back with a search
warrant.” Id. Moreover, Harrison’s brother-in-law told Detective Foster that Charlene Harrison was
concerned because she could not locate the jacket Ray Harrison had been wearing on the night of
the murder. (J.A. 978-79.)
       True to form, the majority discounts this Brady material by insisting that there is only one
plausible view of the evidence. The majority speculates as to “several reasons why Harrison might
be concerned by the interest from the police in searching his residence with a search warrant.” Slip
Op. at 10-11. Although the majority’s explanations are plausible, it is equally plausible that
Harrison was scared to death because he had murdered Edith Russell the night before and was
deeply concerned about the police apprehending him.
        Finally, an undisclosed excerpt from Detective Foster’s file suggests that David Schreane
falsely implicated Harbison in Russell’s murder. A witness named Omenys West told Detective
Foster that he knew David Schreane because he used to commit burglaries with him in the St. Elmo
area, where Edith Russell lived. (J.A. 1010.) Subsequent to the murder, West and Schreane
happened to be in the same courthouse cell with regard to their respective burglary charges. (J.A.
1011.) At that time, Schreane told West that he had been committing burglaries in the St. Elmo area.
(J.A. 1011-12.) Later, Schreane told West that he was upset that his brother-in-law (Harbison) “had
been tryin’ to talk to his old lady, and that his brother-in-law was the one that killed the woman out
there on, in St. Elmo.” (J.A. 1012.) West reiterated to Detective Foster that Schreane had told him
that Harbison had killed “that bitch in St. Elmo,” namely Edith Russell. (J.A. 1016-17.) In a
summary of his interview of West, however, Detective Foster stated that Schreane had told West
that Schreane’s “brother-in-law [Harbison] was messing with his girlfriend and if he did not stop
Schreane said he would put the murder in St. Elmo on him.” (J.A. 1082.)
No. 02-5392           Harbison v. Bell                                                       Page 15


        The district court discounted Schreane’s jailhouse statement because Schreane did not testify
at Harbison’s trial and, therefore, Schreane’s statement could not have been used to impeach him.
It is conceivable, however, that Harbison could have used Schreane’s statement on cross-
examination of Detective Foster, who was principally responsible for investigating Russell’s murder.
Harbison could have asked the detective whether and to what extent the police pursued an
investigation of Ray Harrison in light of Schreane’s motive to falsely implicate Harbison in the
murder. Such cross-examination had the potential of undermining the prosecutor’s argument that
the police had conducted a thorough investigation for all possible suspects in the murder. See J.A.
1676-77. Armed with knowledge that Harrison was a legitimate suspect in the murder, Harbison
likely would have altered his trial strategy. In addition to attempting to establish an alibi defense
and arguing that his confession had been coerced by police threats to take away his girlfriend’s
children, he could have introduced additional evidence shifting blame for the murder to Harrison.
This possibility undermines confidence in Harbison’s guilty verdict.
        According to Brady v. Maryland, “the 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.” 373 U.S. at 87; see also Strickler v.
Greene, 527 U.S. 263, 288 (1999) (“[U]nder Brady an inadvertent nondisclosure has the same
impact on the fairness of the proceedings as deliberate concealment.”). Favorable 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.’” Id. at 280 (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). However, “[t]he question is not whether the defendant would
more likely than not have received a different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v.
Whitley, 514 U.S. 419, 434 (1995).
        The Brady rule “encompasses evidence ‘known only to police investigators and not to the
prosecutor.’” Strickler, 527 U.S. at 280-81 (quoting Kyles, 514 U.S. at 438). The rule applies only
to evidence discovered after trial that was unknown to the defense at the time of trial. United States
v. Mullins, 22 F.3d 1365, 1371 (6th Cir .1994) (citing United States v. Agurs, 427 U.S. 97, 103
(1976)). The prosecutor has a duty to disclose Brady material even when the accused does not
specifically request it, United States v. Agurs, 427 U.S. 97, 107 (1976), and the duty encompasses
impeachment evidence as well as exculpatory evidence, Bagley, 473 U.S. at 676. “In order to
comply with Brady, … ‘the individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in this case, including the police.’” Strickler,
527 U.S. at 281 (quoting Kyles, 514 U.S. at 437).
        Based on these principles, I would hold that the non-disclosure of the above-referenced
portions of Detective Foster’s file undermines confidence in Harbison’s guilty verdict because,
viewed in its entirety, this evidence could have formed the foundation of a colorable defense that
Ray Harrison, not Harbison, murdered Edith Russell and that Schreane falsely implicated Harbison
out of jealousy. See Kyles, 514 U.S. at 436 (holding that the determination of whether undisclosed
evidence is “material” requires the reviewing court to determine the suppressed evidence
“collectively, not item by item”). Ray Harrison’s wife placed Harrison at the scene of the crime,
thereby buttressing Harbison’s alibi defense to the murder charge. The fact that a witness told police
that Harrison was “scared to death,” apparently because he expected the police to search his house,
lends significant support to the theory that Harrison was involved in Russell’s murder. The
additional fact that Schreane had a motive to falsely link Harbison to Russell’s murder solidifies the
conclusion that there is a reasonable probability that Harbison would have been able to shift blame
for the murder from himself had the police records been disclosed to him.
       Harbison might have been found guilty even if he had been able to present this suppressed
evidence to the jury. But it is not his burden to demonstrate that presentation of the suppressed
No. 02-5392           Harbison v. Bell                                                          Page 16


evidence would have led to his acquittal. See Id. at 434-35 (“A defendant need not demonstrate that
after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have
been enough left to convict.”). Harbison need only show “that the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine confidence in the
verdict.” Id. at 435. Here, Harbison reasonably could have used the suppressed evidence to shift
blame for the murder to Harrison. Although, as the majority points out, the prosecution would have
been able to marshal plausible responses to such evidence, Harbison at least had the right to present
his best possible defense to the jury. The prosecution’s Brady violation denied Harbison that right.
                                            II.
                     Cause and Prejudice Excuses Any Procedural Default
        The majority holds that Harbison procedurally defaulted his Brady claim. Harbison may
avoid any procedural default, however, “by showing that there was cause for the default and
prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the
procedural default in the petitioner’s case.” Lancaster v. Adams, 324 F.3d 423, 436 (6th Cir. 2003)
(internal quotation marks and citation omitted). “Cause is shown when the factual basis of the claim
was ‘reasonably unknown’ to the defendant’s counsel.” Jamison v. Collins, 291 F.3d 380, 388 (6th
Cir. 2002) (quoting Amadeo v. Zant, 486 U.S. 214, 222 (1988)). Harbison has made just such a
showing.
A.      Cause
         Harbison’s trial counsel made at least three separate requests for exculpatory information,
which the trial court granted, but the prosecutor did not produce the portions of Detective Foster’s
file discussed above. Harbison’s trial counsel could not have obtained the file records directly from
the Chattanooga Police Department because, at the time of trial in 1983, the documents were exempt
from disclosure under state public records law. Tenn. Code Ann. §§ 10-7-101 et seq. At Harbison’s
state post-conviction hearing in 1991, it was established that Harbison’s post-conviction counsel had
subpoenaed Detective Foster’s file from the Chattanooga Police Department. The transcript of the
hearing further indicates that, in response to the request, Detective Clyde L. Wilhoit had attempted
to locate Detective Foster’s file, but that Wilhoit had no information regarding its location and,
therefore, did not bring it to court. (J.A. 1778-79.)
       The majority dismisses Wilhoit’s testimony, concluding that Wilhoit stated only that he was
unaware of the location of Detective Foster’s file, not that any individual at the police department
had been charged with the task of locating that particular file. See Slip Op. at 9. This is patently
untrue. Because Detective Foster was deceased by the time of Harbison’s post-conviction hearing
in 1991, Harbison subpoenaed Wilhoit, who had assisted Foster in the investigation of Edith
Russell’s murder. The subpoena commanded Wilhoit to bring with him to the post-conviction
hearing “[a]ny and all records, files or documents in his possession or in the possession of the
Chattanooga Police Department relative to the cause of State of Tennessee v. Edward Jerome
Harbison, Jr.” Thus, on pain of contempt, Wilhoit was charged with the task of making a diligent
search of the Chattanooga Police Department’s records for that file. The clear import of Wilhoit’s
sworn testimony that he could not locate Detective Foster’s file was that, as far as the Chattanooga
Police Department was concerned, Detective Foster’s file on the Edith Russell murder was lost.
         The post-conviction testimony of former Chief Detective James M. Davis from 1991 does
not prove otherwise. Although Davis insisted that Detective Foster’s file was still at the police
department, he further testified that he had left the department in 1983, eight years before he testified
at Harbison’s post-conviction hearing. Accordingly, his bald assertion that Detective Foster’s file
still existed in 1991 was utterly without foundation. Nevertheless, the majority credits Davis’s
speculations over that of a current employee of the police department (Wilhoit), who was charged
No. 02-5392           Harbison v. Bell                                                        Page 17


with the task of locating the file in 1991 but could not locate it at that time, and reaches the
remarkable conclusion that Wilhoit’s and Davis’s testimony shows that “there was a very strong
possibility that the relevant files would be available if requested through the appropriate channels.”
Slip Op. at 8. I cannot fathom how the majority reaches this conclusion when Harbison’s subpoena
ducus tecum (clearly an “appropriate channel[]”) failed to yield these files.
         The majority dismisses the significance of the Wilhoit subpoena because it “is not in the
record from the district court, nor was it mentioned in Harbison’s brief to this court.” Slip Op. at
12. It is the majority, however, who has made the Wilhoit subpoena an issue in this case. The
majority asserts that there is no evidence in the district court record that any individuals at the
Chattanooga Police Department “were charged with the task of locating” Detective Foster’s file.
Id. at 9. Warden Bell, however, never advanced this position in support of his procedural default
argument in the district court, nor has he presented it to this Court. See Respondent’s Br. at 32-22,
40 (arguing that Harbison procedurally defaulted his Brady claim because he could have made a
public records request for Detective Foster’s file). The majority’s assertion is a new argument,
raised for the first time today. Harbison had no way of knowing that the Wilhoit subpoena would
be relevant and that he therefore should have introduced it in the district court or included it in the
Joint Appendix.
        “Because this court sits to decide real cases, not abstract questions of law, and because an
adequate understanding of a case is essential to our decision,” Rodic v. Thistledown Racing Club,
Inc., 615 F.2d 736, 738 (6th Cir. 1980), the Court should fully examine the record in Harbison’s
state post-conviction proceeding and take judicial notice of the Wilhoit subpoena. See id. (“‘Federal
courts may take judicial notice of proceedings in other courts of record.’”) (quoting Granader v.
Pub. Bank, 417 F.2d 75, 82-83 (6th Cir. 1969)). Alternatively, this Court can and should supplement
the record under our equitable power, even though the district court apparently did not consider the
Wilhoit subpoena. See Thompson v. Bell, 373 F.3d 688, 690-91 (6th Cir. 2004) (invoking the
Court’s “inherent equitable powers to expand the record on appeal” even though the evidence was
not made part of the district court record), cert. granted on other grounds, __ U.S. __, 125 S. Ct. 823
(2005). The interests of justice require this Court to consider the Wilhoit subpoena in order to assess
the merits of the majority’s argument that Harbison has failed to present evidence that anyone at the
Chattanooga Police Department was ever charged with the task of locating Detective Foster’s file.
        A fair reading of the available record in this case demonstrates that Harbison did not
procedurally default his Brady claim. The Supreme Court’s decision in Strickler is instructive.
There, the State gave the petitioner access to all of the evidence in the prosecutor’s files, such that
petitioner’s counsel did not file a pretrial motion for discovery of possible exculpatory evidence.
Strickler, 527 U.S. at 276. The prosecutor (probably unintentionally) failed to disclose notes taken
by a detective during interviews with an eyewitness as well as letters written by the eyewitness to
the detective. Id. at 273-75. After the defendant was convicted and his conviction was affirmed in
the state courts, he filed a federal habeas action wherein he was granted the right to examine and
copy all of the police and prosecution files in the case. Id. at 278. When the petitioner discovered
the undisclosed notes and letters, he raised a Brady claim for the first time. Id.
        The Supreme Court held there was cause for the petitioner’s failure to raise his Brady claim
in state court because it was reasonable for both trial and post-conviction counsel “to rely on, not
just the presumption that the prosecutor would fully perform his duty to disclose all exculpatory
materials, but also the implicit representation that such materials would be included in the open files
tendered to defense counsel for examination.” Id. at 284. The respondent argued that the fact that
the district court entered an order allowing discovery of the undisclosed police files indicated that
“diligent counsel could have obtained a similar order from the state court.” Id. at 284-85. The Court
rejected this argument because petitioner’s counsel had every reason to believe that the State had
discharged its Brady obligations at trial through its open file policy. Id. at 288. Mere speculation
No. 02-5392           Harbison v. Bell                                                         Page 18


that some exculpatory material may have been withheld did not “suffice to impose a duty on counsel
to advance a claim for which they ha[d] no evidentiary support.” Id. at 286. As the Court
elaborated:
       Proper respect for state procedures counsels against a requirement that all possible
       claims be raised in state collateral proceedings, even when no known facts support
       them. The presumption, well established by “‘tradition and experience,’” that
       prosecutors have fully “‘discharged their official duties,’” United States v.
       Mezzanatto, 513 U.S. 196, 210, 115 S. Ct. 797, 130 L. Ed.2d 697 (1995), is
       inconsistent with the novel suggestion that conscientious defense counsel have a
       procedural obligation to assert constitutional error on the basis of mere suspicion that
       some prosecutorial misstep may have occurred.
Id. at 286-87.
        As in Strickler, Harbison filed numerous discovery motions for Brady materials, all of which
were granted. Harbison’s counsel was entitled to rely on not only the presumption that the
prosecutor would fully perform his duty to disclose all exculpatory materials, but also the implicit
representation that such materials (including Detective Foster’s complete file) would be included
in the evidence actually tendered to defense counsel for examination. The State violated Brady
when the prosecutor failed to disclose all of Detective Foster’s files to Harbison in 1983.
        Warden Bell appears to concede as much, but argues that, as of January 29, 1992, Harbison
had an alternative means of obtaining Detective Foster’s file. While Harbison’s case was on appeal
from the denial of state post-conviction relief, the Tennessee Court of Appeals held that police
records become public records that are open for disclosure upon conclusion of the direct appeal, and
convicted felons (although prohibited from obtaining public records themselves) can obtain them
through counsel. See Capital Case Resource Ctr. of Tenn., Inc. v. Woodall, No. 01-A-
019104CH00150, 1992 WL 12217 (Tenn. Ct. App. Jan. 29, 1992) (holding that the District
Attorney General could not deny a request for access to the prosecution and police files on a
rape/murder case by attorneys representing the person convicted of the crimes in a pending habeas
corpus proceeding in federal court because such files were not exempt from disclosure under the
Tennessee Public Records Act, TENN. CODE ANN. §§ 10-7-101, et seq.); Wright v. State, 987 S.W.2d
26, 29 (Tenn. 1999) (agreeing that the date of the decision in Woodall was the relevant date for
purposes of determining when the petitioner should have first become aware of his right to access
public records that previously had been exempt from disclosure). Warden Bell argues (and the
majority agrees) that by waiting until his federal habeas action in 1997 to make a public records
request to the Chattanooga Police Department, Harbison simply waited too long (five years) to
obtain the evidence that underpins his Brady claim.
        Warden Bell’s reasoning is flawed for the same reasons advanced by the respondent in
Strickler. Warden Bell assumes that Harbison had a factual basis to make a public records request
for Detective Foster’s files during that five-year period. He clearly did not. First, Harbison’s trial
and post-trial counsel were entitled to rely on the presumption that the prosecutor had produced all
Brady material in response to Harbison’s pre-trial discovery requests. Second, as discussed above,
Harbison’s postconviction counsel made a request for Brady material, and Detective Foster’s file
in particular, in 1991, but was told by the officer purportedly in charge of the file (and testifying
under oath) that it could not be located. Thus, Harbison had no basis to make a further public
records request after 1991. Cf. Strickler, 527 U.S. at 286 (holding that mere speculation that the files
could now be located did not “suffice to impose a duty on counsel to advance a claim for which they
ha[d] no evidentiary support”).
No. 02-5392               Harbison v. Bell                                                                    Page 19


        In any event, although not technically part of the record on review,1 it is undisputed that in
1995 Harbison’s counsel directed a second public records request for Brady materials to both the
Chattanooga Police Department Police Chief and the Chief’s second in command. See Attachment
“C” to Harbison’s May 11, 2004 Mot. to Supplement the Record at 104-05. No records were
produced in response. Id. at 106. Moreover, Harbison’s counsel followed up the record requests
with a telephone call to Stanley Lanzo of the District Attorney’s Office, who informed counsel that
there were no records other than what had already been produced. Id. The reality-based facts
therefore show that there was at most a two-year delay between Harbison’s last request for the Brady
material and the request he made after filing his habeas action in federal court. And, given that the
State had told Harbison (a) implicitly in 1983 that he had all Brady material, (b) explicitly in 1991
that potential Brady material could not be located, and (c) explicitly in 1995 there was no other
Brady material, there clearly is cause for Harbison’s failure to discover the factual basis of his Brady
claim until 1997.
        In holding that Harbison failed to demonstrate cause for his procedural default, the majority
ignores the similarity between this case and the facts in Strickler and instead relies upon the
Supreme Court’s decision in Banks v. Dretke, 540 U.S. 668 (2004). Although the majority correctly
notes that Banks involved instances of egregious prosecutorial concealment of Brady evidence and
intentional misrepresentation, the merits of Harbison’s Brady claim do not hinge on whether his
prosecutors intentionally or deliberately withheld Brady evidence. See Strickler, 527 U.S. at 282
(holding that one component of a Brady violation is that the evidence was “suppressed by the State,
either willfully or inadvertently”) (emphasis added); id. at 288 (“[U]nder Brady an inadvertent
nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment.”).
“‘If the suppression of the evidence results in constitutional error, it is because of the character of
the evidence, not the character of the prosecutor.” Id. (quoting Agurs, 427 U.S. at 110).
Consistently, the “cause” inquiry in Brady cases “turns on events or circumstances ‘external to the
defense.’” Banks, 540 U.S. at 696 (quoting Amadeo v. Zant, 486 U.S. 214, 222 (1988) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986))). A State’s inadvertent suppression of Brady material
is no less external to the defense than a willful one. Indeed, in Strickler, the fact that the
prosecutor’s failure to disclose Brady material was inadvertent, see Strickler, 527 U.S. at 275 n.12,
did not preclude the Court from finding cause for the procedural default, see id. at 289. Here,
Harbison’s counsel reasonably relied on the State’s implicit and explicit representations that there
was either no other Brady evidence to discover or that requesting further discovery of such material
would be futile. Accordingly, there was cause for his procedural default, notwithstanding the
purported lack of evidence of deliberate prosecutorial concealment.
        The majority makes the same fundamental error in attempting to distinguish Freshwater v.
State, No. W2003-01343-CCA-R3-CO, 2004 Tenn. Crim. App. LEXIS 741 (Tenn. Crim. App.
Sep. 1, 2004). There, the petitioner, Margo Freshwater, had been tried and convicted of first degree
murder in 1969. Id. at *1. At trial, Freshwater’s attorney requested the written statement of any
informer, but the prosecution produced only portions of these statements. Id. at *7. Less than a

         1
           By order of August 6, 2004, this panel (with Clay, J., dissenting) unjustifiably denied Harbison leave to
supplement the record in order to provide additional information regarding the exhaustion of his Brady claim in state
court. Harbison v. Bell, No. 02-5392 (6th Cir. Aug. 6, 2004). It is clear from the attachments to that motion that
Harbison did eventually present his Brady claim to the Tennessee courts. On June 26, 2001, Harbison filed a motion
to re-open his petition for post-conviction relief and a writ for error coram nobis with the Criminal Court of Hamilton
County and requested a stay of the appeal pending the state court’s decision. The motion/petition raised seven issues,
including the Brady issue. The Criminal Court held an evidentiary hearing on Harbison’s claims on October 13, 2003.
See Attachment “C” to Harbison’s May 11, 2004 Mot. to Supplement the Record. On March 30, 2004, the state court
dismissed Harbison’s motion to re-open pursuant to Harris v. State, 102 S.W.3d 587 (Tenn. 2003) (holding that a petition
for a writ of error coram nobis, and not a motion to reopen, is the proper proceeding through which to seek review of
newly discovered evidence), and dismissed his petition for a writ of error coram nobis as time-barred. See Attachment
“A”.
No. 02-5392           Harbison v. Bell                                                      Page 20


year after her conviction was affirmed on direct appeal, Freshwater escaped from prison and
remained at large until 2002. Id. at *6. In September 2002, Freshwater’s counsel discovered the
informer’s complete statement during a review of the District Attorney’s case file. Id. at *8, *19.
In 2003, Freshwater filed a petition for a writ of error coram nobis, alleging that new evidence
existed that proved her innocence, as well as complaining of a Brady violation. Id. at *1. The State
moved to dismiss based on the one-year statute of limitations. Id. at *9. The State argued that the
petitioner was at fault for failing to bring the Brady claim sooner because she had been a fugitive
for 33 years. Id. at *25.
       The court disagreed with the State’s argument and held that the delay in obtaining the
evidence was not attributable to the fault of the petitioner or her attorneys. Id. at *26. The court
explained:
       Despite the fact that the petitioner escaped from prison and remained at large for
       over thirty years, the petitioner’s trial counsel specifically requested the written
       statement of “any informer once held in the DeSoto County [Mississippi] Jail” as
       part of a discovery request. That information was not provided to the petitioner at
       trial. The fact that the petitioner escaped from jail and remained a fugitive for many
       years does not change the fact that the evidence was withheld by the State. Even if
       the petitioner had not escaped we have no reason to believe this evidence would have
       been disclosed voluntarily. Indeed, if the State’s position in this appeal were to
       prevail, criminal defendants, in order to protect their rights to file a coram nobis
       petition, would be required in every case to examine every prosecution file following
       their convictions in order to determine whether exculpatory evidence was withheld.
       We cannot believe this is something the State really wants.
Id. The court therefore held that due process precluded the dismissal of Freshwater’s Brady claim
based upon a statutory time bar. Id. at *27.
        As was the case in Freshwater, Harbison’s trial attorneys requested the exculpatory
information contained in the police records, but the State did not produce them for another 14 years.
The State’s nondisclosure was just as deliberate as the nondisclosure in Freshwater. In fact, the
non-disclosure was more deliberate in Harbison’s case; for when post-conviction counsel requested
the police records in 1991, he was told that the records could not be located, and after his request
in 1995, was informed that nothing was available beyond what already had been produced. If
Freshwater, who waited 32 years before making a postconviction request for Brady information
because she was a fugitive, had cause for her procedural default, then it follows, a fortiori, that
Harbison, who made at least two additional requests for Brady material and was told that no such
information could be located or existed, did not have to make what reasonably would have appeared
to be a third futile request in order to establish cause.
B.     Prejudice from Non-Disclosure of Police Records
       For the reasons discussed in Part I, supra, I would hold that the evidence contained in
Detective Foster’s file denied Harbison a fair trial and demonstrates that his guilty verdict is
unworthy of confidence. Accordingly, I would hold that Harbison satisfied the prejudice prong of
the procedural default analysis and that the district court should have granted Harbison a writ of
habeas corpus on his Brady claim.
                                               III.
                                            Conclusion
       For all the foregoing reasons, I dissent.
