     United States Court of Appeals
                For the Eighth Circuit
            ___________________________

                    No. 18-3174
            ___________________________

                      Tina Jimerson

                          Plaintiff - Appellee

                            v.

Dexter Payne, Director, Arkansas Department of Correction

                      Defendant - Appellant
            ___________________________

                    No. 18-2873
            ___________________________

                     John Brown, Jr.

                          Plaintiff - Appellee

                            v.

Dexter Payne, Director, Arkansas Department of Correction

                        Defendant - Appellant
                      ____________

        Appeals from United States District Court
     for the Eastern District of Arkansas - Pine Bluff
                      ____________
                            Submitted: November 12, 2019
                                Filed: April 29, 2020
                                    ____________

Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.
                          ____________

ERICKSON, Circuit Judge.

       The Director of the Arkansas Department of Corrections (“State”) appeals from
the district court’s grant of habeas corpus relief under 28 U.S.C. § 2254 to Tina
Jimerson (“Jimerson”) and John Brown, Jr. (“Brown”), Arkansas prisoners serving
life sentences for murder and aggravated robbery. The State argues the district court1
erred in granting relief as to Jimerson’s Brady2 and Youngblood3 claims. The State
argues the district court4 erred in granting Brown relief based on multiple Brady
violations; multiple Giglio5 violations; the prosecution’s failure to correct false or
misleading testimony as required under Napue v. Illinois;6 and a Youngblood
violation for the “conscious shocking” and bad faith failure to preserve evidence. For
the reasons that follow, we affirm the grant of habeas relief in both cases.



      1
       The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
      2
          Brady v. Maryland, 373 U.S. 83 (1963).
      3
          Arizona v. Youngblood, 488 U.S. 51 (1988).
      4
       The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
      5
          Giglio v. United States, 405 U.S. 150 (1972).
      6
          Napue v. Illinois, 360 U.S. 264 (1959).


                                          -2-
I.    BACKGROUND

      Myrtle Holmes (“Holmes”) was found dead in the trunk of her car parked at her
home in Fordyce, Arkansas, on September 22, 1988. On March 16, 1990,7 Charlie
Vaughn (“Vaughn”), Brown, and Reginald Early (“Early”) were charged in state court
with the capital murder of Holmes. The State alleged that the three men had acted
together in committing rape and robbery, and in the course of those crimes, had
caused Holmes’ death under circumstances manifesting extreme indifference to the
value of human life. Approximately one year later, Vaughn pled guilty to first-degree
murder. Vaughn’s guilty plea implicated Brown and Early. Vaughn’s plea also led
to Jimerson being charged as an accomplice in a separate information. The trial court
consolidated the cases for trial.

      Investigations undertaken on behalf of Brown and Jimerson since their
convictions reveal a number of unusual issues and facts about the case, including:
      •      law enforcement’s undisclosed use of informant Ronnie Prescott;
      •      an undisclosed recorded confession by co-defendant Vaughn;
      •      an undisclosed photo lineup identification of Brown;
      •      both Jimerson and Early were represented at trial by the same attorney;
      •      an undisclosed close familial relationship (described by the Holmes’
             family’s private investigator as “I’ll scratch your back and you’ll scratch
             mine”) between a witness, who had been sentenced to 20 years for a
             drug conviction in 1989, and the Dallas County sheriff, who released the
             witness in 1991 under the jail trustee program;




      7
      The Arkansas Supreme Court incorrectly stated the charges were filed on
March 16, 1991.


                                          -3-
      •      an undisclosed relationship between the family of informant Taura
             Bryant, who provided critical testimony at trial, and the Holmes’
             family’s private investigator;
      •      witnesses that have admitted to being so heavily under the influence of
             drugs at the time of the murder and trial that they have no recollection
             of their trial testimony;
      •      co-defendant Early’s signed affidavit, assuming sole responsibility for
             the crimes; and
      •      an individual who was interviewed by law enforcement in 1990 and has
             denied under oath that he provided incriminating information contained
             in the interview report prepared by law enforcement.

       Despite the myriad of issues contained in the record and briefing, we focus our
attention on the facts giving rise to the legal issues before us. During Vaughn’s guilty
plea, Vaughn told the judge that Jimerson, Brown, and Early picked him on the night
of the murder because they wanted to do a robbery. Jimerson drove to Holmes’
house. Vaughn reported that none of the men had prior knowledge of Holmes and
that the residence had been randomly selected. According to Vaughn, all three of the
men raped Holmes and then Brown killed her. At trial, Vaughn recanted the
statements he had made that formed the factual basis for his guilty plea, repeatedly
testifying that he had “nothing to say.” He explained his recantation by saying he
made the confession because he was scared he would get the death penalty so he
followed what “y’all said.” He clarified that “y’all” referred to his attorney. The
prosecutor read the factual basis for Vaughn’s guilty plea to the jury. Scientific
evidence presented at trial was inconsistent, in part, with Vaughn’s statements about
Holmes being raped. The DNA collected from Holmes’ body was from a single
source. A doctor testified that the collected DNA had been compared to samples
taken from Vaughn, Early, and Brown. He testified that Vaughn and Brown had been




                                          -4-
excluded as contributors, but Early could not be excluded as the contributor. No
physical evidence connected Vaughn, Brown, or Jimerson to the crime.

       When Jimerson was charged a couple days after Vaughn’s guilty plea,
Jimerson’s attorney, who also represented Early, filed discovery motions, requesting
information concerning informants and whether any informants had requested or were
offered immunity, leniency, sentence or charge concessions, or other inducements.
He also requested video and audio recordings of the co-defendant’s confession. In
addition, he asked for “any material or information within [the prosecuting attorney’s]
knowledge, possession or control, or in the hands of any law enforcement agency,
that could negate the guilt of the defendant of the offense charged or could reduce the
punishment therefore.” The then-deputy prosecuting attorney responded that the
informant referred to as “Sam” was Taura Bryant, and the only recordings were of
conversations with two witnesses who were brothers and video of the crime scene.
The prosecutor also said that the State had no knowledge of any informant whose
information led to or assisted in making an arrest and that no offers of immunity,
leniency, sentence or charge concessions, or other inducements were made to any co-
defendant, potential witness, or informant other than the offer made to Vaughn.

       The first trial ended in a mistrial when the jury hung on a six-to-six split. The
State dropped the rape charge and amended the informations to charge Brown, Early,
and Jimerson with first-degree murder and aggravated robbery. With the alleged rape
off the table, no DNA evidence was presented at the second trial. A jury returned
guilty verdicts for all three on both charges, and each was sentenced to life in prison.
In 1994, all three judgments of convictions on both charges were affirmed on appeal.
Brown v. State, 869 S.W.2d 9 (Ark. 1994).

     Neither Brown nor Jimerson filed petitions for certiorari in the United States
Supreme Court, or filed with any court any other petitions, applications, or motions



                                          -5-
challenging their conviction until these habeas petitions were filed in the Eastern
District of Arkansas. Jimerson filed her petition on June 30, 2015. Brown filed his
petition on December 21, 2016.

       Jimerson asserted in her petition that her conviction had been obtained contrary
to the Fourteenth Amendment Due Process Clause because the police and prosecution
failed to disclose exculpatory or impeaching evidence prior to trial in violation of
Brady v. Maryland, 373 U.S. 83 (1963), and because law enforcement destroyed
evidence in bad faith in violation of Arizona v. Youngblood, 488 U.S. 51 (1988). The
allegations for these claims were based primarily on information developed through
the efforts of private investigator Greg Stimis, at the direction of Jimerson’s counsel.

       On January 7, 2014, Stimis went to Fordyce to obtain the case file. While
there, he met with Dallas County Sheriff Ford. Sheriff Ford told Stimis about law
enforcement’s use of a previously undisclosed informant to obtain Vaughn’s
confession. Sheriff Ford informed Stimis that, while transporting a prisoner from
Texas to Arkansas on an unrelated drug charge, the prisoner asked if there was
anything he could do to help his situation. Sheriff Ford responded that law
enforcement could use the prisoner’s help to get information about a murder.

       When he arrived in Arkansas, the prisoner was placed in Vaughn’s jail cell.
Sheriff Ford recalled that when the prisoner-turned-informant told him that he got a
confession from Vaughn, the Sheriff sent the prisoner/informant back to the jail cell
with a recording device. According to Sheriff Ford, Vaughn confessed again on tape.
Sheriff Ford said that the prosecutor determined the recording was inadmissible and
he thought that the tape “was gone,” either lost or destroyed. When Stimis contacted
Sheriff Ford after the January 2014 meeting to get the informant’s name, the Sheriff
told Stimis he could not identify the informant. Sheriff Ford subsequently quit
responding to Stimis’ email messages.



                                          -6-
       On January 27, 2014, Stimis made a Freedom of Information Act request to the
Arkansas State Police (“ASP”) for its files on the Holmes investigation.
Approximately three weeks later, Stimis received the file, which consisted of about
210 pages of redacted documents. In that file was a one-page report of an interview
occurring on March 24, 1991, with a man named Ronnie Prescott. While the report
did not indicate details about the interview, it referenced a handwritten statement
taken from Prescott that was to be made part of the file. Prescott’s statement was not
included in the documents Stimis received.

      On June 24, 2014, Jimerson’s counsel located Prescott and talked to him by
phone at a federal prison in South Carolina. Counsel confirmed that Prescott was the
informant to whom Vaughn confessed and the confession had been recorded. On July
11, 2014, counsel met Prescott in person. Prescott signed an affidavit detailing his
cooperation with law enforcement in the Holmes murder investigation.

       Approximately six months later, on January 7, 2015, Jimerson’s counsel met
with Captain Steven Coppinger at the ASP headquarters. Counsel saw for the first
time a handwritten statement bearing Prescott’s signature and dated March 24, 1991.
The statement was co-signed by then-Fordyce Chief of Police Ronnie Poole and then-
ASP Lieutenant Bradshaw. Prescott has testified that he did not write the statement.
The statement did not reflect that Prescott recorded any conversations with Vaughn.

      On April 26, 2015, Jimerson’s original trial counsel signed a statement
confirming that he knew nothing about a jailhouse informant or any tape recorded
conversations with Vaughn. While Jimerson was working on gathering evidence for
her habeas claim, the Innocence Project was working on co-defendant Early’s case.
In 2012, the Innocence Project had accepted representation of Early. Some four
months after Jimerson filed her petition, Early came forward and took sole
responsibility for the crimes. Early had professed his innocence until shortly after his



                                          -7-
counsel filed a motion to have the DNA retested, utilizing new technology that could
perhaps definitively identify the source, rather than simply exclude potential
contributors. About a week after the motion was filed, on October 27, 2015, Early
called his counsel and told her that he was the only one involved in Holmes’ murder.
He signed an affidavit admitting guilt on December 21, 2015. He attested: “Neither
Mr. Vaughn, Mr. Brown, nor Ms. Jimerson were involved in these crimes in any way.
They are currently serving life sentences for crimes that they did not commit. I am
solely responsible for raping Ms. Holmes, and I am solely responsible for her
murder.” He then detailed in his affidavit how and why he committed the crimes. It
was not until December 22, 2015, that Early’s counsel told co-defendants’ counsel
about Early’s confession.

        On January 26, 2016, Jimerson moved to amend her petition to add an actual
innocence claim. On December 21, 2016, Brown filed his habeas petition, asserting
a claim of actual innocence, Brady violations for concealing evidence and failing to
disclose evidence, a Youngblood claim for bad faith failure to preserve evidence, a
Fourteenth Amendment Due Process violation for the prosecution’s failure to correct
false evidence when it appeared in the record, and a claim of ineffective assistance
of trial counsel.

        The magistrate judge in Jimerson’s case held an evidentiary hearing and so did
the magistrate judge in Brown’s case. Prescott’s testimony was similar to statements
Sheriff Ford made to Jimerson’s investigator, although there are some notable
differences. Prescott testified that Sheriff Ford gave him a tape recorder and “the
little cassette that goes in it” right away when they arrived at the Dallas County jail.
According to Prescott, Sheriff Ford told him “[t]o try to get the inmate that he was
putting me in the cell with to talk about the incident that happened and to see what
information I could gather from him.” Prescott was incentivized by Sheriff Ford
because if Prescott was successful in obtaining information about Holmes’ murder,



                                          -8-
his pending case “would be gone” and he “wouldn’t have to worry about that
anymore.” Prescott testified that he had three, possibly four conversations with
Vaughn over the four or five days they were in the same cell. While Prescott was
working to gather information, at one point he met with Sheriff Ford and suggested
that perhaps Prescott would appear more credible if he engaged Vaughn in an
argument. After Vaughn confessed to Prescott, Prescott gave the recorder to Sheriff
Ford and, while in Prescott’s presence, Sheriff Ford played a little bit of the recording
to make sure it was audible. Sheriff Ford then took custody of the recorder and tape.
Prescott went back to his cell, stayed for a little bit, and then his wife picked him up
that evening after his bondsman had posted his bond.

       The magistrate judge assigned to Jimerson’s case recommended denial and
dismissal of her petition. The magistrate judge assigned to Brown’s case also
recommended denial and dismissal of his petition. The district judge granted
Jimerson’s habeas petition as to her Brady and Youngblood claims, denied her actual
innocence claim, vacated her convictions, and ordered her released from jail. The
district judge granted Brown’s habeas petition, vacated his convictions, and gave the
State 30 days to release Brown or commence new criminal charges against him. The
district court denied the State’s motion for a stay in both cases, so both have been
released from custody. The State timely appealed both cases, which we have
consolidated.

II.   DISCUSSION

      On appeal of a district court’s decision on a petition brought under 28 U.S.C.
§ 2254, we review the court’s findings of fact for clear error and its legal conclusions
de novo. White v. Steele, 853 F.3d 486, 489 (8th Cir. 2017). We review a district
court’s decision to grant, deny, or limit the scope of an evidentiary hearing during
habeas proceedings for abuse of discretion. Nooner v. Hobbs, 689 F.3d 921, 938 (8th



                                          -9-
Cir. 2012). Precisely when Jimerson and Brown developed the factual predicate for
each of their claims required the district court to make fact findings. The court did
not abuse its discretion in holding evidentiary hearings on the habeas petitions to
determine the State’s timeliness defense. Schlup v. Delo, 513 U.S. 298, 332 (1995)
(noting in the context of a habeas petition the “fact-intensive nature of the inquiry”
and the district court’s ability to take testimony from key witnesses). Additionally,
28 U.S.C. § 2254(e)(2) does not preclude the district court from holding a hearing on
the merits of at least Brown’s and Jimerson’s Youngblood claims because Brown and
Jimerson were not at fault for their failure to develop the claim in state court.
Williams v. Taylor, 529 U.S. 420, 434–36 (2000) (determining § 2254(e)(2) does not
bar evidentiary hearings for prisoners with meritorious claims not developed in state
court simply because the prosecution’s conduct, such as concealing facts, went
undetected in state court).

      A.     Timeliness

       Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) habeas
petitioners have one year from the latest of four triggering events to file a petition for
habeas relief in federal court. 28 U.S.C. § 2244(b)(1). The State has asserted both
petitions are time-barred. Brown and Jimerson contend their petitions were timely
filed under § 2244(d)(1)(D), which starts the limitations period as of “the date on
which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” “The factual predicate of a
petitioner’s claims constitutes the vital facts underlying those claims.” Earl v. Fabian,
556 F.3d 717, 725 (8th Cir. 2009) (quoting McAleese v. Brennan, 483 F.3d 206, 214
(3d Cir. 2007)). “Section 2244(d)(1)(D) does not convey a statutory right to an
extended delay while a habeas petition gathers every possible scrap of evidence that
might support his claim.” Id. (cleaned up). We must keep in mind that “a desire to
see more information in the hope that something will turn up differs from the factual



                                          -10-
predicate of a claim or claims.” Id. (quoting Johnson v. McBride, 381 F.3d 587, 589
(7th Cir. 2004)).

            1.     Tina Jimerson

       We conclude that the factual predicate for Jimerson’s Brady claim,
Youngblood claim, and actual innocence claim developed at different times.
Jimerson discovered the vital facts of her actual innocence claim when Early
confessed in December 2015 to being the sole perpetrator of the crime. Jimerson
brought her actual innocence claim in an amended petition filed just over a month
after Early signed an affidavit confessing to the crimes. To the extent that a
freestanding actual innocence claim may be recognized in a habeas proceeding,8
Jimerson filed her actual innocence claim within one year of the date the factual
predicate was discovered, so the claim, if cognizable, would be timely under §
2244(d)(1)(D).

       To establish a Brady violation, Jimerson must show that the prosecution
suppressed evidence that was favorable to her and material to either guilt or
punishment. Keys v. United States, 943 F.3d 1152, 1154 (8th Cir. 2019) (citation
omitted). 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. (quoting United States v. Ladoucer, 573 F.3d 628, 636 (8th Cir.
2009)). Before Jimerson’s private investigator spoke with Sheriff Ford on January
7, 2014, Jimerson had no way of knowing that law enforcement recruited the
assistance of another prisoner to act as an informant in jail, that law enforcement
provided the means to record conversations with Vaughn, and that the informant’s

      8
       McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (affirming actual innocence
exception may be invoked to overcome the AEDPA statute of limitations, but
declining to decide whether it should be recognized as a freestanding claim).


                                       -11-
cooperation would result in the complete dismissal of the informant’s pending charge.
Jimerson’s counsel served broad discovery requests on the prosecutor regarding
informants and anyone else who had been offered leniency, sentence or charge
concessions, or other inducement. In response, the prosecutor disclosed Taura Bryant
(“Sam”). He did not disclose the existence of Prescott, a prisoner-turned-informant
who actually had his pending charges dismissed in exchange for his assistance in the
investigation of Holmes’ murder. The prosecutor’s file did not contain the tape
recording made by Prescott or any information indicating law enforcement had used
Prescott to obtain information from Vaughn about Holmes’ murder. As found by the
magistrate judge in Jimerson’s case: “There is no question that the prosecutor’s
responses to trial counsel’s discovery requests in this case were misleading at best,
and arguably untruthful.”

       After the meeting on January 7, 2014, Stimis and Jimerson’s counsel pieced
together more information about the undisclosed informant, including his identity,
over the next several months. On June 24, 2014, Jimerson’s counsel talked directly
with Prescott on the telephone. Prescott confirmed that he was the informant who
spoke with Vaughn and reinforced that he had made a recording of his conversations
with Vaughn.

       Since the identity of the informant was still unknown to Jimerson in January
2014, Jimerson had not yet obtained vital facts surrounding her Brady claim. It is
indisputable, however, that once Jimerson’s counsel identified the informant by name
and talked directly with him, Jimerson had discovered the factual predicate for her
Brady claim. See Martin v. Fayram, 849 F.3d 691, 697 (8th Cir. 2017) (explaining
the fact that a petitioner may have wanted to develop additional evidence does not
mean she was not actually aware of the vital facts to present her claim). Jimerson has
not shown anything that would have prevented her from filing a petition alleging a




                                        -12-
Brady violation after she spoke with Prescott, and amending it later if additional
information became available.

      The limitations period for Jimerson’s Brady claim started to run on June 24,
2014. She filed her petition on June 30, 2015, after the one-year limitations period
had expired. Counsel’s negligence in failing to file a timely petition is not an
extraordinary circumstance warranting equitable tolling. Rues v. Denney, 643 F.3d
618, 622 (8th Cir. 2011) (refusing to apply equitable tolling when attorney missed the
deadline for filing habeas petition under § 2254 by fourteen days). Jimerson’s Brady
claim is time-barred.

      The timeliness of Jimerson’s Youngblood claim presents a much closer
question. Under Youngblood, the prosecutor has a duty to preserve potentially useful
evidence for trial. Ferguson v. Roper, 400 F.3d 635, 638 (8th Cir. 2005).
Youngblood applies to the bad faith loss or destruction of evidence before trial. Id.

       At the meeting on January 7, 2014, Jimerson’s investigator learned that a
recording was made of Prescott’s conversations with Vaughn, but it likely no longer
existed. Jimerson had no evidence to support a claim that the loss or destruction of
this evidence was in bad faith. A failure to preserve evidence resulting from mere
negligence does not give rise to a Youngblood violation. United States v. Houston,
548 F.3d 1151, 1155 (8th Cir. 2008) (citing United States v. Iron Eyes, 367 F.3d 781,
786–87 (8th Cir. 2004)).

       In February 2014, when the ASP responded to Jimerson’s request for the file,
there was a note that a handwritten statement was taken from Prescott, but the
statement was not turned over to Jimerson. It was not until January 7, 2015, when
Jimerson’s counsel met with ASP Captain Steven Coppinger, that Jimerson was able
to gain access and review Prescott’s statement. The handwritten statement contained



                                        -13-
Prescott’s signature, former Chief of Fordyce Police Ronnie Poole’s signature, and
ASP Lieutenant Jerry Bradshaw’s signature. It indicated that Vaughn initiated
conversations with Prescott and Vaughn eventually confessed. It does not mention
that the Sheriff had incentivized Prescott to elicit a confession. Although it was
known by law enforcement and the prosecution that Prescott had recorded
conversations with Vaughn, the statement made no mention of this fact. Jimerson’s
original trial counsel confirmed on April 26, 2015, that the evidence was not made
available before trial and was suppressed by the prosecution. Bad faith can be shown
by proof of an official animus or a conscious effort to suppress exculpatory evidence.
United States v. Bell, 819 F.3d 310, 318 (7th Cir. 2016) (quotations and citations
omitted); United States v. Collins, 799 F.3d 554, 569 (6th Cir. 2015) (quoting United
States v. Jobson, 102 F.3d 214, 218 (6th Cir. 1996)).

       Without the recording, we cannot ascertain its significance. We do not know
what Prescott said to Vaughn to elicit the confession. We do not know if Prescott
suggested details to Vaughn. We do not know if the recorded confession was
consistent with the in-court confession. We do not know if Vaughn reluctantly and
nervously confessed and implicated others, or if he willingly and confidently
confessed and implicated others. It could be that the recording was merely
cumulative and corroborative of Vaughn’s in-court statements. It could be that the
recording demonstrated Vaughn was coerced or influenced to implicate others out of
fear that he would be put to death if convicted. What we can conclude on this record
is the failure to make any mention of the fact that Prescott recorded conversations
with Vaughn in a handwritten statement prepared by one of the law enforcement
officers for Prescott’s signature combined with the failure to disclose the recording
is evidence of a conscious effort to suppress evidence. The deliberate omission is
indicative of bad faith. Because of the successful efforts of law enforcement and the
prosecutor to conceal and destroy the recording, Jimerson lacked any evidence of bad
faith, or in other words a good faith basis to pursue a Youngblood claim, until her



                                        -14-
counsel was given access to Prescott’s handwritten statement. The factual predicate
for her Youngblood claim was developed on January 7, 2015, at the earliest. She
asserted her Youngblood claim within the one-year limitations period.

      We conclude that Jimerson’s Youngblood and actual innocence claims are
timely under 28 U.S.C. § 2244(d)(1)(D), but her Brady claim is not.

      2.     John Brown, Jr.

       Our analysis of the timeliness of Brown’s claims is less complicated. We find
the State’s argument that Brown failed to exercise due diligence in presenting his
claims because his attorney did not uncover information about the informant during
cross-examination of Vaughn unavailing. While evidence is “new” if it was not
available at the time of trial through the exercise of due diligence, Kidd v. Norman,
651 F.3d 947, 952 (8th Cir. 2011), due diligence does not require a defendant to root
out information that the State has kept hidden. See Dennis v. Sec., Penn. Dep’t of
Corr., 834 F.3d 263, 293 (3d Cir. 2016). The State cannot play “hide and seek” with
information it was required to disclose and then accuse defense counsel of lacking
due diligence. See id. Due diligence does not require defense counsel to possess
psychic abilities and discover potentially favorable evidence during trial that the State
chose to conceal, particularly when defense counsel specifically requested disclosure
of the evidence now at issue.

       As to the issue of when Brown learned or should have learned about his claims,
the Innocence Project that represented Early is separate from the Midwest Innocence
Project representing Brown. The Midwest Innocence Project agreed to represent
Brown in June 2016, at Jimerson’s evidentiary hearing. There is no evidence from
which we can conclude that Brown learned or could have learned the factual
predicate for his actual innocence claim before Early’s counsel revealed that Early



                                          -15-
had confessed. Early’s counsel testified at Brown’s evidentiary hearing that she never
talked to any of the co-defendants and the first time she disclosed her client’s
confession was via email to counsel on December 22, 2015.

       There is nothing in the record to suggest that Jimerson’s counsel at the Legal
Clinic was communicating with Brown during the course of her investigation or when
she filed her habeas petition. The State has cited no authority for its assertion that
due diligence obligates a defendant to monitor his co-defendant’s court filings for
information that could give rise to post-conviction relief. Such a requirement would
go beyond the statutory requirement of due diligence, particularly when the petitioner,
like Brown, was indigent, had been incarcerated for over 20 years, and had no means
for funding an investigator or attorney.

       In Anjulo-Lopez, we explained that due diligence required a defendant to check
his own docket entries to ensure that his attorney had filed an appeal. Anjulo-Lopez
v. United States, 541 F.3d 814, 818 (8th Cir. 2008). A requirement that a defendant
stay informed about his own case is notably different than being held responsible for
knowing what is occurring in a co-defendant’s case. “[D]iligence can be shown by
prompt action on the part of the petitioner as soon as he is in a position to realize that
he has an interest in challenging the prior conviction.” Johnson v. United States, 544
U.S. 295, 308 (2005). The earliest possible date for which the limitations period
under § 2244(d)(1)(D) started running was December 22, 2015, the day Early’s
counsel revealed to co-defendants’ counsel that Early had confessed and taken sole
responsibility for the crimes. After being informed about the confession, Brown had
a duty to make reasonable efforts to discover the facts supporting his actual innocence
claim and other potential claims. The record demonstrates that Brown discovered the
predicate facts for his constitutional claims at Jimerson’s June 2016 evidentiary
hearing. We find the claims in Brown’s petition filed on December 21, 2016, were
filed within one year of discovering the factual predicate for each claim.



                                          -16-
     We conclude that Brown’s claims9 were timely filed under 28 U.S.C. §
2244(d)(1)(D).

      B.     Exhaustion and Procedural Default

       Setting aside for a moment the claims of actual innocence which may be
excepted from the procedural default doctrine or reviewed under the miscarriage-of-
justice exception, we consider whether the State waived its non-exhaustion defense.
Here, the State, through the Attorney General, was involved in both the state
proceedings and federal post-conviction proceedings. Arkansas provides by statute
that the attorney general is to be the attorney for “all state officials, departments,
institutions, and agencies” and shall “maintain and defend the interests of the state in
matters before the United States Supreme Court and all other federal courts.” Ark.
Code. Ann. §§ 25-16-702, 703. The State asserted defenses of timeliness and
procedural default in its response to Brown’s and Jimerson’s petitions. The State,
however, affirmatively waived exhaustion before the district court when, in its
response to Jimerson’s petition, it asserted: “Respondent also admits that Jimerson
has no unexhausted, non-futile state remedies available to her.” The same admission
was made in response to Brown’s petition. A waived defense “is one that a party has
knowingly and intelligently relinquished.” See Wood v. Milyard, 566 U.S. 463, 470
n.4 (2012). We are “not at liberty” to revive a waived exhaustion defense. Id. at 466,
474.

      While the State argued procedural default at length in its opening brief,
procedural default may be excused by an adequate showing of cause and prejudice.

      9
       Assuming the hypothetical, yet-to-be recognized actual innocence
“freestanding” claim is recognizable in a habeas petition. See McQuiggin, 569 U.S.
at 392 (noting the actual innocence exception, but declining to decide that it should
be recognized as a freestanding claim).


                                         -17-
Our analysis on the merits of the Youngblood claims would dovetail with the
prejudice prong. Since the merits are discussed later in this opinion, we do not repeat
those findings here other than to note Brown and Jimerson have satisfied the
prejudice prong. As to the other prong, the Supreme Court has determined that
“cause” is shown when “(a) the prosecution withheld exculpatory evidence; (b) the
petitioner reasonably relied on the prosecution’s open file policy as fulfilling the
prosecution’s duty to disclose such evidence; and (c) the [State] confirmed
petitioner’s reliance on the open file policy by asserting . . . petitioner had already
received ‘everything known to the government.’” Strickler v. Greene, 527 U.S. 263,
289 (1999). Because Brown and Jimerson have made the necessary showing of
external impediments outside of their control that prevented them from raising their
claims, including the prosecution’s concealment of evidence, misstatements about
evidence, destruction or loss of evidence, and reliance on an open-file policy that the
prosecution knew prevented them from discovering critical evidence, the petitioners
have established cause. See id.; see also Ivy v. Caspari, 173 F.3d 1136, 1141 (8th
Cir. 1999) (explaining cause excusing procedural default can be shown by
government non-action as well as government interference). Brown and Jimerson
have made an adequate showing excusing procedural default as to their Youngblood
claims.

      C.     Merits of the Timely Filed Claims

             1.     Actual Innocence

      “‘Actual innocence’ means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998). Even assuming the Supreme
Court would recognize actual innocence as an independent constitutional claim upon
which habeas relief can be granted, the petitioner would carry an extraordinarily high
burden of proof, requiring more convincing proof than the “gateway” standard of



                                         -18-
whether it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt. Dansby v. Hobbs, 766 F.3d 809, 816
(8th Cir. 2014) (cleaned up). The allegations must be supported by “new reliable
evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence–that was not presented at trial.” Schlup, 513
U.S. at 324.

       Brown’s and Jimerson’s actual innocence claims rest on the credibility of
Early’s confession and its potential impact on a reasonable juror. The magistrate
judge in Jimerson’s case found Early’s confession “questionable.” The magistrate
judge in Brown’s case found it “simply not reliable.” (emphasis in original). The
district judges adopted the magistrate judges’ fact-finding. Brown’s original trial
counsel testified that the notion that Early could repeatedly stab and then put Holmes’
body in the trunk of her car without getting blood on him, as he averred in his
affidavit, was “probably not probable, given the nature of the crime and the scene.”

       Both magistrate judges also noted the timing of Early’s confession, which
occurred on the heels of new DNA testing that might not only exclude other co-
defendants, but definitively establish Early’s involvement. It simply does not follow
that because Early admitted to committing the crimes, Jimerson, as an accomplice
driving the car to and from the robbery/murder, and Brown, as another participant in
the robbery and murder, could not have been involved. The State presented
circumstantial evidence from a number of witnesses that placed all of the co-
defendants together on the night of the crime. While this circumstantial testimony
along with Vaughn’s recanted confession and now Early’s confession all come with
their fair share of credibility issues, nothing has been presented during these habeas
proceedings, either individually or in combination, that would establish that Brown
or Jimerson can meet the “gateway” standard of actual innocence, let alone
demonstrate they are factually innocent.



                                         -19-
             2.     Youngblood Claims

       We have determined that both Brown and Jimerson have alleged a timely
constitutional violation under Youngblood. In the dissent in Davis v. Ayala, Justice
Sotomayor, noting that her “disagreement with the Court does not stem from its
discussion of the standard of review,” summarized when habeas relief is warranted
for a constitutional violation:

      [A] federal court can grant habeas relief only when it concludes that a
      constitutional error had a substantial and injurious effect or influence
      on either a jury verdict or a trial court decision. Later, O’Neal v.
      McAninch, 513 U.S. 432 (1995), clarified that this standard is satisfied
      when a reviewing judge is in grave doubt about whether the error is
      harmless; that is, when the matter is so evenly balanced that [a judge]
      feels himself in virtual equipoise as to the harmlessness of the error. Put
      differently, when a federal court is in equipoise as to whether an error
      was actually prejudicial, it must treat the error, not as if it were harmless,
      but as if it affected the verdict (i.e., as if it had a substantial and
      injurious effect or influence in determining the jury’s verdict).

576 U.S. 257, 135 S. Ct. 2187, 2211 (2015) (Sotomayor, J., dissenting) (cleaned up).

        The deputy prosecuting attorney,10 who told law enforcement that the recording
could not be used at trial, did not testify at either Brown’s evidentiary hearing or
Jimerson’s evidentiary hearing. While it is the petitioners’ burden to establish bad
faith, the State makes no claim that the recording was preserved for trial, or that it
was destroyed in accord with the prosecution’s or law enforcement’s normal practice
or as a matter of routine sometime after trial. The reasonable inference to be drawn
from the evidence in the record is that the recording was lost or destroyed well before

      10
       Since his role as prosecutor, he has been a judge on the Arkansas Court of
Appeals beginning in 2011 until elected to the Arkansas Supreme Court in 2014.


                                          -20-
trial. On May 16, 1991, the prosecutor responded to defense counsel’s discovery
requests that specifically sought information about recordings and informants.
Although the recording was made on March 24, 1991, approximately five weeks later,
the prosecutor made no mention of Prescott nor did he indicate there was a tape with
recorded conversations between Prescott and Vaughn. Unlike other cases in which
this court has rejected a Youngblood claim, the uncontroverted evidence in this case
indicates the recording was lost or destroyed before trial. See e.g., Ferguson v.
Roper, 400 F.3d 635, 638 (8th Cir. 2005) (concluding no Youngblood violation when
the undisclosed evidence “existed until long after the trial”).

       The State argues that bad faith is absent in this case because “all indications are
that the police and the prosecutor thought the evidence was inculpatory, not
exculpatory.” The State’s argument is unsupported by the record. After law
enforcement and the deputy prosecutor discussed the recording, the prosecutor
advised that the recording was inadmissible. The testimony from Sheriff Ford and
Chief of Police Poole was not that the prosecutor thought the evidence was
inculpatory, but that it could not be used or “wouldn’t have evidentiary value.”
Although the substance of the recording is not entirely clear, what the recording
contained appears to be significant enough that law enforcement and the prosecution
worked together to intentionally conceal its existence from the defense. That intent
is demonstrated in several ways. One way is the prosecutor’s decision to provide, at
a minimum, misleading answers to defense counsel’s discovery requests, but more
accurately classified as untruthful answers. Another way is the prosecutor’s decision
not to preserve the recording after he found out about it and opined it was
inadmissible.11 In addition, law enforcement assisted the prosecution’s efforts to

      11
         Both district court judges specifically found that the deputy prosecutor
destroyed the recording. The State argues that these findings are clearly erroneous.
Regardless of who lost or destroyed the recording, the same bad faith standard applies
to both prosecutors and law enforcement officers. Villasana v. Wilhoit, 368 F.3d 976,
980 (8th Cir. 2004).


                                          -21-
conceal the existence of the recording by putting together a statement for Prescott to
sign that deliberately left out any mention that a recording took place. The existence
of the recording was also omitted from the state police report, which failed to identify
Prescott as an informant. Taken together, the uncontroverted evidence establishes
bad faith. Cf. Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 462 (8th Cir. 2013)
(explaining bad faith existed when plaintiff “would undoubtedly have benefitted from
producing actual documents and examining their contents,” but the defendant deleted
a number of documents related to the lawsuit just hours before the scheduled
computer inspection).

       Vaughn’s mental functioning has been called into question. Without the
informant evidence, defense counsel could do little to challenge the veracity of
Vaughn’s confession, or, at a minimum, raise questions of credibility inherent in a
cooperating informant. Without the recording, Brown and Jimerson lost the ability
to argue to the jury that Vaughn’s confession was influenced or perhaps even enticed
by an informant who stood to gain complete dismissal of his pending felony drug
charge. Under certain circumstances, it is permissible to draw an adverse inference
against the government when it destroys evidence. See United States v. Davis, 690
F.3d 912, 925 (8th Cir. 2012), vacated on other grounds by 570 U.S. 913 (2013)
(noting an adverse instruction for spoliation in a criminal case may be warranted if
the evidence establishes an inference that the police acted improperly by destroying
evidence); United States v. Houston, 548 F.3d 1151, 1155 (8th Cir. 2008) (addressing
argument requesting an adverse credibility finding against the government for failing
to preserve a video); United States v. Iron Eyes, 367 F.3d 781, 786–87 (8th Cir. 2004)
(analyzing claim that an adverse inference instruction was justified due to the police’s
acquiescence to evidence destruction).

       Under these particular circumstances where the prosecutor and law
enforcement acted in concert to not only conceal the contents of the recording but
also effectively concealed the fact that a recorded conversation took place, an adverse



                                         -22-
inference may be drawn and it is appropriate to weigh the value in favor of Brown
and Jimerson. Accordingly, under the O’Neal standard, we are required to treat the
constitutional violation as if it had substantial and injurious effect or influence on the
jury’s verdicts. Having found a constitutional violation that warrants habeas relief,
we need not resolve Brown’s other remaining constitutional claims.

III.   CONCLUSION

      We reverse, in part, as to certain claims and we affirm, in part, as to certain
claims. We reverse the district court’s finding that Brown met the actual innocence
gateway exception. We affirm the district court’s finding that Brown established a
meritorious Youngblood violation. We reverse the district court’s finding that
Jimerson presented a timely Brady violation. We affirm the district court’s finding
that Jimerson established a meritorious Youngblood violation, but failed to
demonstrate actual innocence. Having each established a constitutional violation that
we find had a substantial and injurious effect or influence on the jury’s verdicts, we
affirm the grant of habeas relief to Brown and Jimerson.
                       ______________________________




                                          -23-
