       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Armstrong v. Morgan                        No. 02-6374
    ELECTRONIC CITATION: 2004 FED App. 0185P (6th Cir.)
                File Name: 04a0185p.06                    David H. Findley, OFFICE OF THE ATTORNEY
                                                          GENERAL, Nashville, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                                               _________________
              FOR THE SIXTH CIRCUIT                                              OPINION
                _________________                                            _________________

 ARTHUR L. ARMSTRONG,            X                          BOYCE F. MARTIN, JR., Circuit Judge. Arthur
                                                          Armstrong appeals the denial of his petition for a writ of
          Petitioner-Appellant, -                         habeas corpus following his state court convictions for
                                  -
                                  -   No. 02-6374         robbery, rape, kidnaping and crimes against nature. For the
            v.                    -                       reasons stated below, we AFFIRM.
                                   >
                                  ,                                                    I.
 JACK MORGAN, Warden,             -
         Respondent-Appellee. -                             Armstrong’s convictions arise from his participation in the
                                 N                        abduction, rape and robbery of a young woman on the night
      Appeal from the United States District Court        of February 11, 1977. The victim testified that she was
    for the Middle District of Tennessee at Nashville.    abducted by two men as she was exiting her vehicle. During
  No. 99-00265—William J. Haynes, Jr., District Judge.    much of the overnight ordeal, the victim’s eyes were taped,
                                                          but at times the tape loosened and she was able to see the
               Argued: December 4, 2003                   identity of her abductors. The victim alleged that one of her
                                                          abductors–later identified as Armstrong–had told her to call
           Decided and Filed: June 18, 2004               him “Nate.” The testimony at trial indicated that “Nate” was
                                                          one of Armstrong’s nicknames. Upon her release the
  Before: KENNEDY, MARTIN, and MOORE, Circuit             following morning, the victim reported the incident to the
                    Judges.                               police. The victim identified Ronny Harris, Armstrong’s co-
                                                          defendant, as one of the perpetrators. Harris later pleaded
                  _________________                       guilty to abduction and robbery. The victim also made a
                                                          photographic identification of Armstrong as the second
                       COUNSEL                            abductor. Armstrong was indicted for armed robbery, rape,
                                                          kidnaping and two counts of crimes against nature.
ARGUED: C. Douglas Thoresen, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.     At Armstrong’s jury trial, identification was a hotly
David H. Findley, OFFICE OF THE ATTORNEY                  contested issue. Specifically, Armstrong attempted to cast
GENERAL, Nashville, Tennessee, for Appellee.              doubt on the victim’s identification because her initial
ON BRIEF: C. Douglas Thoresen, FEDERAL PUBLIC             identification did not make reference to Armstrong’s
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.   prominent gold teeth and because her eyes were taped during

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No. 02-6374                            Armstrong v. Morgan            3    4       Armstrong v. Morgan                            No. 02-6374

most of the ordeal. The trial testimony indicates that the                 reports prepared by Officer Donzaleigh Heard on different
defense attorney questioned the victim regarding the kind of               dates in February 1977,2 both of which contain statements
adhesive that was used over her eyes and whether more than                 indicating that the victim never had the opportunity to see her
one strip of tape covered her eyes. Indeed, at one point the               attackers clearly. Thus, Armstrong included in his appeal of
defense attorney referred to the tape covering the victim’s                the denial of his state petition for habeas corpus relief an
eyes as a “mask.”1 Another factor used to cast doubt on the                allegation that the prosecution violated the disclosure
victim’s identification of Armstrong was that Armstrong’s co-              requirements under Brady v. Maryland, 373 U.S. 83 (1963).
defendant denied that Armstrong had any involvement in the                 The Tennessee Court of Criminal Appeals affirmed the
crimes. Additionally, Earline Harris House, Harris’s sister                denial, but noted that Armstrong’s Brady violation claim
and Armstrong’s girlfriend at the time, testified that                     should be presented in a state post-conviction proceeding.
Armstrong was with her on the night of the incident and that               Thus, Armstrong filed for post-conviction relief with the state
during this visit her brother, Harris, by himself, brought the             court in September 1995. After an evidentiary hearing, the
victim to her house and took her into his bedroom. Harris                  state court denied Armstrong relief, crediting the testimony of
essentially testified that Armstrong could have had no                     the prosecutor at the original trial, David Raybin, that he had
involvement in the crimes committed against the victim                     turned over all exculpatory evidence before Armstrong’s trial.
because Armstrong was never in the presence of the victim.                 The Tennessee Court of Criminal Appeals affirmed and the
The evidence at trial, however, also demonstrated that the                 Tennessee Supreme Court declined review.
victim’s necklace and a tennis racket, which the perpetrators
stole, were recovered from Armstrong’s possession. The jury                  In March 1999, Armstrong, proceeding without the benefit
convicted Armstrong on every count contained in the                        of counsel, filed a petition for a writ of habeas corpus with the
indictment, and the conviction was affirmed on direct appeal.              district court. Counsel was appointed in March 2000. In June
                                                                           2002, Armstrong sought leave to file an amended petition for
  In July 1989, Armstrong filed a petition for post-conviction             habeas corpus relief, which was granted. It is the June 2002
relief with the state court, arguing that trial counsel was                petition that is at issue in the instant case. In this petition,
ineffective for not challenging the photographic lineup and                Armstrong argues that the state court erred in concluding that
for not filing any pretrial motions. This petition was denied              no Brady violation occurred and that if the district court found
and the Tennessee Court of Criminal Appeals affirmed. The                  that the exculpatory materials were presented to Armstrong’s
Tennessee Supreme Court denied Armstrong’s appeal. In                      original counsel, then his trial attorneys were constitutionally
June 1992, Armstrong filed a petition for habeas corpus relief             ineffective. The district court, on September 30, 2002,
in the district court, which held that Armstrong had failed to             granted summary judgment in favor of Warden Morgan
properly exhaust three out of his four claims for relief.                  concluding that Armstrong had procedurally defaulted his
                                                                           ineffective assistance of counsel claim and that the state
  In April 1993, Armstrong filed a petition for state habeas               court’s factual determination that Raybin disclosed the reports
corpus relief which was denied. According to Armstrong, on                 to Armstrong’s counsel was entitled to the statutory
approximately August 27, 1993, his attorney discovered two

                                                                               2
    1
                                                                                 No tably, the district court opinion erroneously stated that the
      On the objection of the prosecution to the termin ology of “mask,”   supplemental report was dated “February 12, 1997.” The actual date of
the reference was changed to “tape.”                                       the supplemental report was Fe bruary 27, 197 7.
No. 02-6374                          Armstrong v. Morgan       5    6    Armstrong v. Morgan                          No. 02-6374

presumption of correctness. See 28 U.S.C. § 2254(e)(1). This        process where the evidence is material either to guilt or to
timely appeal followed.                                             punishment, irrespective of the good faith or bad faith of the
                                                                    prosecution.” 373 U.S. at 87. The Supreme Court has since
                               II.                                  held that material, exculpatory evidence must be disclosed
                                                                    even absent the defendant’s request. See United States v.
   Because Armstrong’s petition for habeas corpus review was        Agurs, 427 U.S. 97 (1976). Evidence is “material” if “there
filed after the effective date of the Antiterrorism and Effective   is a reasonable probability that, had the evidence been
Death Penalty Act of 1996, the Act governs this Court’s             disclosed to the defense, the result of the proceeding would
review. Bowling v. Parker, 344 F.3d 487, 497 (6th Cir.              have been different.” United States v. Bagley, 473 U.S. 667,
2003). Under the Act, this Court reviews “de novo the legal         682 (1985). On appeal, the parties appear to agree that Brady
conclusions of a district court denying habeas relief.” Id.         required the disclosure of these reports.
This Court, however, presumes that the state court’s factual
determinations are correct, “unless [they are] rebutted by clear      A Brady violation, however, only occurs if the prosecution
and convincing evidence.” Castleberry v. Brigano, 349 F.3d          failed to disclose the evidence to the defense. The state court,
286, 291 (6th Cir. 2003); 28 U.S.C. § 2254(e)(1). Pursuant to       after conducting an evidentiary hearing on the issue,
the Act, we may not grant a writ of habeas corpus unless we         determined that the evidence was indeed disclosed to defense
find that the state court’s decision: (1) “was contrary to, or      counsel before Armstrong’s trial. This decision was based
involved an unreasonable application of, clearly established        upon the testimony of David Raybin, the original prosecutor
Federal law . . .” or (2) “was based on an unreasonable             in the case, who testified that he had disclosed this
determination of the facts . . . .” 28 U.S.C. § 2254(d)(1).         information to the defense. Upon review of Armstrong’s
                                                                    federal petition for habeas corpus relief, the district court
  On appeal, Armstrong repeats his argument that the                afforded the state court’s finding on this ground the statutory
prosecution failed to disclose Brady material–i.e, two police       presumption of correctness. See Brown v. Davis, 752 F.2d
reports containing material, exculpatory evidence. The first        1142, 1147 (6th Cir. 1985) (“factual findings of the state court
report, taken by Officer Heard, contains seven pages, but           are presumed to be correct” on federal habeas review).
Armstrong claims to have received at the time of his trial only
one page of this report. This report contains statements that          On appeal, Armstrong argues that the district court erred in
the victim was blindfolded and never got a good look at her         finding that he had failed to rebut by clear and convincing
abductors and that they stayed behind her during the ordeal.        evidence the state court’s factual determination that Raybin
The second report, also taken by Officer Heard, noted that the      had provided Armstrong with the police reports.
victim “did not get a good look at her assailants,” and that        Alternatively, Armstrong argues that the district court erred
having the victim “look at mug shots would have been                in affording the state court’s factual determination that
useless.” As discussed, Armstrong claims that he had not            Raybin had provided Armstrong with the police reports the
received these reports until 1993, when he requested a copy         statutory presumption of correctness.
of his police file. We now analyze the merits of these very
serious allegations of Brady violations.                              We first address Armstrong’s argument that the district
                                                                    court erred in finding that he had not rebutted by clear and
  Brady held that “the suppression by the prosecution of            convincing evidence the state court’s factual determination
evidence favorable to an accused upon request violates due          that Raybin had provided Armstrong with the police reports.
No. 02-6374                              Armstrong v. Morgan              7    8    Armstrong v. Morgan                        No. 02-6374

In support of his argument, Armstrong points to: (1) the trial                 the defense with the exculpatory police reports. Simply put,
testimony of Officer Heard indicating that her only                            Officer Heard’s testimony and indeed her credibility, is
involvement in the investigation of the case was that she took                 irrelevant to the issue of Raybin’s credibility and whether or
the initial description and report from the victim, when there                 not he disclosed both of Officer Heard’s police reports to the
was evidence indicating that that was not, in fact, her only                   defense.
involvement in the investigation of the case because she wrote
a supplemental report approximately two weeks after she took                     Second, at the 1989 hearing on Armstrong’s ineffective
the initial description and wrote the first report; and (2) the                assistance of counsel claim, Raybin essentially testified that
1989 testimony of Raybin indicating that there was only one                    there was only one piece of evidence that he felt constituted
piece of exculpatory evidence–“the sheet”–which Armstrong                      Brady material and that he had given the defense “the sheet.”
argues is inconsistent with Raybin’s 1996 testimony that all                   During this 1989 testimony, Raybin essentially testified that
exculpatory evidence was disclosed and also demonstrates                       he knew the standard under Brady for evaluating whether
that only one sheet of Officer Heard’s report was given to the                 information needed to be disclosed to the defense and that he
defense.3 We find these arguments unpersuasive.                                acted consistently with his disclosure duties. By viewing
                                                                               Raybin’s testimony as a whole, one could argue that Raybin’s
  First, regardless of whether Officer Heard’s testimony was                   testimony could be understood as an indication that he
arguably inconsistent with the facts surrounding her                           disclosed only the one sheet description of the perpetrators
involvement in the case because there is evidence that she                     and nothing else, because he did not believe Brady required
was more involved in the case than she testified to, this is not               any more than that disclosure.
dispositive of the genuine issue involved on appeal –whether
Armstrong provided clear and convincing evidence to rebut                        We conclude, however, that this testimony merely reflects
the state court’s factual determination that Raybin provided                   Raybin’s own assessment of the relevant weight of the
                                                                               evidence and not the amount of evidence that Rabyin
                                                                               disclosed to the defense. Stated otherwise, even if Raybin
                                                                               believed that only one piece of evidence was exculpatory, that
    3
      Armstrong also argues that there is evidence that Rayb in misled the     does not mean that he did not disclose more than that “one
defense about the content of the p olice re ports. Specifically, Armstrong     sheet.” Indeed, even Armstrong’s own trial counsel testified
contends that Raybin told defense counsel that he had a statement from         that Raybin had provided “open file” discovery. Thus, we do
the victim indicating that one of her abductors took off the tape on her
eyes while she ate, so she w as able to see clearly the abductor’s identity,
                                                                               not believe that Raybin’s 1989 testimony is inconsistent with
but that this statement was not mentioned in the reports. Armstrong            his 1996 testimony. In any event, even were we to conclude
argues that the absence of any notation in the police reports about this       that Raybin’s 1989 testimony was arguably inconsistent with
statement demonstrates that the prosecution engaged in a practice of           his 1996 testimony, such an inconsistency would not
withholding evidence from his defense. The attorney’s full statement,          constitute “clear and convincing” evidence to rebut the state
however, was that he remembered Raybin telling him that “he had a
statement - - or a least I remember him telling m e . . . .” This full
                                                                               court’s determination that Raybin provided the defense with
statement explains the absence of such a statement in the po lice rep ort;     copies of the police reports in question. Regardless of how
that is, the testimony leaves open the possibility that Raybin did not         we interpret Raybin’s 1989 testimony and what implicit
actually have an official statement from the victim on this point.             assumptions can be made from that testimony, in 1996 he
Mo reover, while we reject the factual basis of this argume nt, we also note   testified clearly and directly that he gave the defense the
that it is of no legal consequence to Armstrong’s Brady claim, as the
statement was not withheld from the d efense, nor exculpa tory.
                                                                               police reports that Armstrong alleges were withheld. Under
No. 02-6374                       Armstrong v. Morgan         9    10   Armstrong v. Morgan                          No. 02-6374

these circumstances, Armstrong has not met his burden of           (“J.A.”) at 627 (“The staff hospital emergency room record
demonstrating clear and convincing evidence that the state         was available to me . . . .”); J.A. at 628 (referring to the
court’s factual determination was erroneous.                       second report taken by the staff physician three hours after the
                                                                   initial report).
   We next address Armstrong’s alternative argument that the
district court erred in applying the statutory presumption of        For the foregoing reasons, we AFFIRM the district court’s
correctness to the state court’s factual determination that        denial of Armstrong’s petition of a writ of habeas corpus.
Raybin had disclosed the police reports at issue. Armstrong
argues that because Raybin’s 1996 testimony was inconsistent
with his 1989 testimony and because the state court in making
its finding did not have the benefit of analyzing and
comparing Raybin’s 1989 testimony with the 1996 testimony,
the district court erred in relying upon the uninformed
findings of the state court. Additionally, Armstrong argues
that the state court’s determination is not entitled to the
statutory presumption of correctness because in making its
finding it did not have the benefit of two medical reports
containing notations that the victim’s eyes were taped,
thereby preventing her from seeing her abductors. Armstrong
argues that these reports were withheld from the defense and
discovered only after the state evidentiary hearing and that
these reports impeach Raybin’s testimony regarding the
amount of exculpatory material. We find this argument
unpersuasive.
  First, as discussed, we cannot conclude that Raybin’s 1996
testimony was inconsistent with his 1989 testimony. Second,
given the fact that the same judge conducted both the 1989
and the 1996 evidentiary hearings and issued the
accompanying orders, it is highly doubtful, contrary to
Armstrong’s assertion, that the “findings of the [state] court
following the 1996 hearing would have been different” had it
considered the inconsistency of Raybin’s testimony. Finally,
regarding Armstrong’s argument that the medical reports
impeach Raybin’s credibility, we find no evidence to indicate
that the medical reports were withheld during the initial trial.
Rather, our review of the record indicates that the defense was
fully aware of such reports; indeed, these reports were
repeatedly referred to during the trial. See Joint Appendix
