                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 13a0272p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                X
                                                 -
 KENNETH ANDREW JEFFERSON,
                                                 -
                     Petitioner-Appellant,
                                                 -
                                                 -
                                                     No. 12-1182
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 UNITED STATES OF AMERICA,
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
     Nos. 2:98-cr-80812-3; 2:04-cv-73288—Paul D. Borman, District Judge.
                                      Argued: June 20, 2013
                           Decided and Filed: September 12, 2013
      Before: MOORE and GRIFFIN, Circuit Judges; SARGUS, District Judge.*

                                       _________________

                                             COUNSEL
ARGUED: Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Bruce C. Judge,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
ON BRIEF: Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Bruce C. Judge,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
                                       _________________

                                             OPINION
                                       _________________

         KAREN NELSON MOORE, Circuit Judge.                            In this case, an internal
investigation by the U.S. Attorney’s Office found evidence suggesting that during the
trial of Petitioner-Appellant Kenneth Jefferson (“Jefferson”) on drug-conspiracy charges,
the prosecution failed to disclose to the defense the extent of the promises of leniency


         *
           The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                   1
No. 12-1182         Jefferson v. USA                                                 Page 2


that the prosecution made to several cooperating witnesses. In a motion to vacate his
sentence filed pursuant to 28 U.S.C. § 2255, Jefferson alleged that he was denied a fair
trial because the prosecutor violated his obligation under Brady v. Maryland to disclose
material impeachment evidence. Although the district court initially denied Jefferson’s
motion, we remanded the case so that the district court could make additional findings
of fact regarding whether some of Jefferson’s claims were filed within the statute of
limitations, and whether equitable tolling should be applied. On remand, the district
court again denied Jefferson’s motion, finding that Jefferson’s claims were not timely
filed, that equitable tolling was not warranted, and that even if timely, Jefferson’s Brady
claims failed on the merits. We reject the district court’s conclusion that Jefferson failed
to exercise due diligence in these circumstances, and hold that a § 2255 petitioner is
permitted to rely on the government’s representation that it has fulfilled its Brady
obligations. Reasonable diligence does not require a § 2255 petitioner repeatedly to
scavenge for facts that the prosecution is unconstitutionally hiding from him.
Nonetheless, assuming that Jefferson’s claims were timely filed, we agree with the
district court that Jefferson’s Brady claims fail on the merits, because the undisclosed
impeachment evidence was not prejudicial. Accordingly, we AFFIRM the judgment
of the district court.

                                  I. BACKGROUND

        This appeal stems from Jefferson’s conviction in June 1999 for conspiring to
distribute and to possess with intent to distribute cocaine and cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and 846. See United States v. Stines, 313 F.3d 912, 913
(6th Cir. 2002). The evidence at trial established that Jefferson was part of a gang
organized in the late 1980s in Ypsilanti, Michigan, by codefendant Joseph Stines
(“Stines”) for the purpose of processing and distributing crack cocaine. See id. at 914.
In statements to law enforcement agents following his arrest, Jefferson “admitted that
he had started selling crack in Ypsilanti in the summer of 1996,” that “[an unindicted
coconspirator] was one of his principal suppliers[,] and that he often bought one-eighth
of a kilogram, but on two occasions he had purchased a half kilogram.” Id. at 915.
No. 12-1182        Jefferson v. USA                                              Page 3


       Several coconspirators, including Tali Alexander (“Alexander”), Reese Palmer
(“Palmer”), Rasul Warren (“Warren”), and Eva Taylor (“Taylor”), cooperated with the
government in exchange for favorable plea agreements and testified as to the nature of
the conspiracy and defendants’ connections to it. On cross-examination, these witnesses
testified that the sentences the government agreed to recommend pursuant to the plea
agreements were far lower than the sentences they would face for the full scope of
criminal activity to which each admitted. Another witness, Samuel Mullice (“Mullice”),
testified that in 1996 Jefferson gave him a ride home from the parole office and told
Mullice that “he was doing something” and that if Mullice “need[ed] to do something,
get in contact.” R. 331 (Trial Tr. at 2767) (Page ID #6749). Mullice interpreted this
statement to mean that Jefferson was selling drugs. Id. at 2768 (Page ID #6750).
Witness Labron Nunn (“Nunn”) testified that in 1997 he bought two and a half ounces
of crack cocaine from Jefferson, and that Jefferson asked Nunn to join “the family.”
Stines, 313 F.3d at 915. The jury returned a verdict of guilty as to all defendants, and
Jefferson was sentenced to 240 months of imprisonment, followed by five years of
supervised release.

       In July 1999, one of Jefferson’s codefendants filed a motion for a new trial,
joined by Jefferson, asserting that their trial was tainted by prosecutorial misconduct
because “the government clearly had either a tacit agreement or an overt agreement with
. . . witnesses [including Alexander] that they would receive certain additional
consideration following their testimony which they did not reveal and which the
Government did not reveal.” R. 209 (Mot. for New Trial at 5) (Page ID #9090). The
district court denied the motion for a new trial. R. 240 (Dist. Ct. Order) (Page ID
#9259). The following year, in June 2000, Stines filed a renewed motion for a new trial,
which Jefferson joined. See R. 305 (Am. Mot. for New Trial) (Page ID #9749). The
amended motion repeated the allegation that the prosecution failed “to disclose the full
extent of their agreements with the[] witnesses” who testified against the defendants,
including Alexander, Warren, and Palmer, and that the prosecutor “knowingly allowed
perjured testimony to be given.” Id. at 19 (Page ID #9772). This motion was not
No. 12-1182         Jefferson v. USA                                                  Page 4


considered on the merits by the district court, because at the time the motion was filed,
the case was already on appeal. See R. 370 (Dist. Ct. Order) (Page ID #10201).

          In 2002, we affirmed Jefferson’s conviction and sentence on direct appeal.
Stines, 313 F.3d at 913. Jefferson was not a party to the petition for a writ of certiorari
from the Supreme Court filed by some of his codefendants, and accordingly, Jefferson’s
“conviction became final on May 12, 2003, upon the expiration of the 90-day period for
seeking the writ.” Jefferson v. United States, 392 F. App’x 427, 429 (6th Cir. 2010).
Jefferson filed a motion to vacate his sentence under 28 U.S.C. § 2255 on August 26,
2004, raising four grounds for relief. R. 486 (§ 2255 Pet.) (Page ID #213). Jefferson
concedes that these claims were untimely under § 2255(f)(1), and he does not pursue any
of these claims in the instant appeal. Appellant Br. at 11; see Jefferson, 392 F. App’x
at 429.

          In March 2004, five months before Jefferson filed his initial § 2255 motion,
Alexander, in a letter to the district judge presiding over his criminal case, stated that he
had expected AUSA Richard Convertino (“Convertino”), the prosecutor in charge of his
case (and in charge of          Jefferson’s and Stines’s prosecutions), to make a
recommendation for a downward departure to reduce Alexander’s sentence. Jefferson,
392 F. App’x at 432. This letter prompted a closer look at the Alexander case, and the
district court identified an absence of downward departure motions and yet sentences
were below amounts identified in plea agreements. Subsequently, the U.S. Attorney’s
Office (“USAO”) began an internal investigation into Convertino’s conduct in the
Alexander case. Interviews with witnesses Alexander, Warren, Palmer, and Hans
Thomas (“Thomas”), who also testified in Jefferson’s trial, revealed that they had all
been sentenced far below the downward-departure sentences the government had agreed
to recommend in their respective plea agreements, and extremely far below the
maximum sentences agreed to in the plea agreements. The investigation culminated in
a report known as the Schools Memorandum, which we previously summarized as
follows:
No. 12-1182        Jefferson v. USA                                                  Page 5


       Without recounting the information set forth in that Memorandum, we
       note that it suggests there is evidence that Convertino met with some
       cooperating witnesses in this case without defense counsel; entered
       written plea agreements and made some, at least tacit, promises of further
       sentencing reductions; had witnesses testify without revealing the
       additional understandings; moved orally at sentencing or in Rule 35
       motions for downward departures; and had the sentencing records of
       these witnesses sealed. The fairness of Jefferson’s trial was not the focus
       of the investigation, but it produced evidence that the government felt
       compelled to disclose to Jefferson.

Jefferson, 392 F. App’x at 432. Adding to concerns regarding Convertino’s conduct as
an AUSA was United States v. Koubriti, in which the district court dismissed—with the
agreement of the government—terrorism charges against several convicted defendants.
The district court in Koubriti found that the prosecutors, including Convertino, failed to
turn over exculpatory evidence to the defense and “materially misled the Court, the jury
and the defense as to the nature, character and complexion of critical evidence that
provided important foundations for the prosecution’s case.” 336 F. Supp. 2d 676,
680–81 (E.D. Mich. 2004).

       On March 25, 2005, Jefferson filed an Amended Motion for New Trial or in the
Alternative Defendant’s Renewed Motion for Mistrial and for Evidentiary Hearing and
a Motion to Recall Mandate or, In the Alternative, Motion under Fed. R. Civ. P. 60(b)(5)
(together, the “March 2005 motions”). R. 517 (Am. Mot. for New Trial) (Page ID
#691); R. 519 (Mot. to Recall) (Page ID #717). Jefferson’s amended motion for a new
trial was a verbatim repetition of Stines’s 2000 Amended Motion for a New Trial. The
2005 motion (consisting of a photocopy of Stines’s 2000 motion) stated that “Defendant
has recently discovered that the Government made additional deals with various
witnesses which was withheld from the Defendant.” R. 517 (Am. Mot. for New Trial
at 2) (Page ID #692). Jefferson’s motion to recall the mandate asserted a new claim that
Nunn provided perjured testimony at trial that was contradicted by his testimony at an
earlier trial. R. 519 (Motion to Recall at 2) (Page ID #718). Both of these motions were
No. 12-1182            Jefferson v. USA                                                            Page 6


construed by the district court as motions to amend Jefferson’s initial § 2255 motion.1
R. 533 (Mag. J. R&R at 1) (Page ID #784); R. 614 (Dist. Ct. Op. at 1–2) (Page ID
#2391–92).

         Six months after Jefferson filed these motions, on September 30, 2005, the
government disclosed to Jefferson memoranda of interviews with Thomas, Warren, and
Alexander conducted in late 2004 in connection with the internal investigation into
Convertino’s conduct. See Appellant Br. at 14–15. Following these disclosures, as well
as Stines’s counsel’s efforts to unseal sentencing records for several of the witnesses
who testified at Stines’s and Jefferson’s trial, Stines filed a supplemental motion on
March 27, 2006, adding to his previously filed § 2255 motion. See R. 552 (Supp.
Arguments in Supp. of Pet.) (Page ID #913). Jefferson obtained counsel in January
2006, and that counsel filed a motion to join Stines’s supplemental briefing on
September 26, 2006. R. 573 (Notice of Joinder) (Page ID #1270).

         The district court denied Jefferson’s § 2255 motion and the March 2005 motions
to amend as untimely. R. 614 (Dist. Ct. Op. at 24) (Page ID #2414). Jefferson had
argued that his claims regarding prosecutorial misconduct were timely because they
could not have been discovered until either (i) September 2, 2004, when the unrelated
terrorism Koubriti decision was issued, finding that Convertino had failed to disclose
exculpatory evidence, or (ii) September 30, 2005, when the government disclosed its
interviews with witnesses from Jefferson’s trial. The district court rejected both of these
triggering dates. First, the district court found that a decision in an unrelated terrorism
case could not constitute the factual predicate for prosecutorial-misconduct claims in
Jefferson’s case. Id. at 22 (Page ID #2412). Second, the court found that the September
30, 2005 disclosures could not form the basis of Jefferson’s § 2255 motion, because
Jefferson filed his motions in March 2005, before the September 2005 disclosures. Id.




         1
           Because the district court, as well as the prior panel of this court, construed Jefferson’s March
2005 motions as amendments to his previously filed § 2255 motion, we reject the government’s argument
in this appeal that Jefferson’s March 2005 motions should be treated as a successive § 2255 motion.
No. 12-1182         Jefferson v. USA                                                 Page 7


        On appeal, we reversed and remanded. Jefferson, 392 F. App’x at 433. We
agreed with the district court that Jefferson could not rely on the September 2, 2004
dismissal of the terrorism charges in Koubriti as the factual predicate of his claims. Id.
at 431. We also agreed that Jefferson could not use the September 2005 disclosures as
the basis for his March 2005 motions. See id. We concluded, however, that the district
court “did not resolve the critical question of whether Jefferson’s additional claims were
brought within one year of ‘the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence.’” Id.
(quoting 28 U.S.C. § 2255(f)(4)). We thus remanded “for further consideration of the
statute of limitations and the possible application of equitable tolling.” Id. at 427.

        On remand, the district court again denied Jefferson’s § 2255 motion. The
district court found that Jefferson’s claims were untimely and were not subject to
equitable tolling, and that even if the claims were timely, they failed on the merits. This
appeal followed.

                                     II. ANALYSIS

A. Standard of Review

        “In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo
standard of review to the legal issues and uphold the factual findings of the district court
unless they are clearly erroneous.” Hamblen v. United States, 591 F.3d 471, 473
(6th Cir. 2009). We review de novo the district court’s determination regarding the
applicability of equitable tolling when the facts are undisputed. Solomon v. United
States, 467 F.3d 928, 932 (6th Cir. 2006).

B. Statute of Limitations

        “A motion filed pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of
limitations, with the limitations period beginning to run ‘from the latest of’ four possible
dates.” Benitez v. United States, 521 F.3d 625, 629 (6th Cir. 2008). At issue in this case
is whether Jefferson filed his claims within one year of “the date on which the facts
supporting the claim or claims presented could have been discovered through the
No. 12-1182        Jefferson v. USA                                               Page 8


exercise of due diligence.” 28 U.S.C. § 2255(f)(4). This standard “does not require the
maximum feasible diligence, only due, or reasonable, diligence.” DiCenzi v. Rose,
452 F.3d 465, 470 (6th Cir. 2006) (internal quotation marks omitted). “‘[T]he petitioner
bears the burden of proving that he exercised due diligence.’” Johnson v. United States,
457 F. App’x 462, 468 (6th Cir. 2012) (quoting DiCenzi, 452 F.3d at 471). Accordingly,
the key question is whether, taking into account “the reality of the prison system,”
DiCenzi, 452 F.3d at 470 (internal quotation marks omitted), Jefferson could have
discovered the factual predicate for his claims using due diligence more than a year
before filing his March 2005 motions, supplemented by his September 2006 filing.

       1. Brady Claims

       Jefferson argues that he could not have discovered the facts underlying his claims
earlier than March 2005 because Convertino deliberately hid the plea agreements and
sentencing records of the cooperating witnesses. R. 667 (Pet.’s Br. After Remand at 4)
(Page ID #3513). The district court rejected this argument and found that using due
diligence, Jefferson could have discovered the facts underlying the claims raised in his
March 2005 motions more than a year before he filed the motions. The district court
faulted Jefferson for failing to attempt to investigate further his suspicions of
prosecutorial misconduct and failing to seek out sources other than the government to
acquire facts and evidence to substantiate his suspicions. We hold that, given the record
in this case, the district court’s determinations are erroneous: Section § 2255(f)(4)’s
requirement that a petitioner exercise reasonable diligence to discover the factual
predicate underlying his claims does not require a petitioner repeatedly to seek out
information that the government unconstitutionally failed to disclose despite having
notice that petitioner sought the very information suppressed.

       We must determine what diligence a reasonable person in Jefferson’s
circumstances would have exercised to discover the facts underlying his claim that the
prosecution withheld information relating to promises made to government witnesses.
Prior to Jefferson’s trial, the defense requested “information relating to . . . any
consideration, reward, agreement, or promise . . . given by the government to [any
No. 12-1182        Jefferson v. USA                                                Page 9


witness that the government intends to call at trial].” R. 97 (Mot. for Discovery at 5)
(Page ID #9039). In response, the government represented that it was “aware of its
duties under Brady v. Maryland, 373 U.S. 83 (1963), and will provide impeachment
information as contemplated in Giglio v. United States, 405 U.S. 150 (1972).” R. 139
(Gov’t Resp. to Def.’s Various Mots. for Discovery at 1–2) (Page ID #8875–76). After
their convictions, in July 1999 and again in June 2000, the defendants filed motions for
a new trial, each of which explicitly raised the claim that the government had failed to
disclose the full extent of the promises made to cooperating witnesses. See R. 209 (Mot.
for New Trial at 5) (Page ID #9090); R. 305 (Am. Mot. for New Trial at 19) (Page ID
#9772). The government responded to both motions, arguing that defendants’ challenges
regarding the impeachment of government witnesses lacked merit and were based on
pure speculation. See R. 213 (Gov’t Resp. in Opp. to Def.’s Mot. for New Trial) (Page
ID #9116); R. 349 (Gov’t Resp. to Def.’s Am. Mot. for New Trial at 2–3) (Page ID
#10264–65). This procedural history demonstrates both that the prosecution was clearly
on notice that the defendants sought all information relating to promises made to
government witnesses, and that the prosecution made a representation that it would
disclose all impeachment evidence in its possession to the defense.

       The Supreme Court has held that a defendant may rely on exactly this kind of
representation of full disclosure by the government, and that a defendant may “assume
that his prosecutors would not stoop to improper litigation conduct to advance prospects
for gaining a conviction.” Banks v. Dretke, 540 U.S. 668, 694 (2004). Accordingly,
given the prosecution’s representation that it would disclose impeachment evidence, a
defendant such as Jefferson “had no basis for believing [the prosecution] had failed to
comply with Brady.” Strickler v. Greene, 527 U.S. 263, 287 (1999). In Banks, despite
representing to the defendant that the government would “provide her with all discovery
to which [she was] entitled,” the government failed to disclose certain evidence that
would have aided the defense in impeaching the government’s witnesses. Banks,
540 U.S. at 675. Further, at trial, “the prosecution raised no red flag when the informant
testified[] untruthfully.” Id. The Court rejected the Fifth Circuit’s conclusion that the
defendant was not sufficiently diligent in pursuing her post-conviction claims because
No. 12-1182          Jefferson v. USA                                                  Page 10


she did not seek out evidence to support her claim of a Brady violation. Id. at 688, 698.
Specifically, the Court rejected the position “that the prosecution can lie and conceal and
the prisoner still has the burden to . . . discover the evidence, . . . so long as the potential
existence of a prosecutorial misconduct claim might have been detected.” Id. at 696
(internal quotation marks and citation omitted). The Court concluded that “[a] rule thus
declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system
constitutionally bound to accord defendants due process.” Id.

        Likewise, in Strickler, the Court explained that “[t]he presumption, well
established by tradition and experience, that prosecutors have fully discharged their
official duties, is inconsistent with the novel suggestion that [a] conscientious
[defendant] [has] a procedural obligation to assert constitutional error on the basis of
mere suspicion that some prosecutorial misstep may have occurred.” 527 U.S. at
286–87. Especially when the prosecutor “was an active participant in shielding any
evidence of the facts underlying the [Brady] claim,” a prisoner does not have a burden
to investigate whether there exists evidence that the government had a constitutional
obligation to disclose, but did not. Douglas v. Workman, 560 F.3d 1156, 1181 (10th Cir.
2009) (holding that petitioner could not, “exercising due diligence,” have “uncovered
the existence of a deal” between the prosecutor and a cooperating witness any sooner);
see United States v. Tavera, 719 F.3d 705, 711–12 (6th Cir. 2013) (rejecting a rule that
would require defendants to exercise due diligence to discover exculpatory evidence in
the government’s possession); Starns v. Andrews, 524 F.3d 612, 619 (5th Cir. 2008)
(holding that “there was no requirement that [petitioner] act diligently to investigate
further assuming the state could be taken at its word”).

        Accordingly, the government’s position that Jefferson failed to exercise due
diligence because he did not seek information “the very existence of which the
[government] had improperly withheld in violation of Brady . . . . is fundamentally at
odds with Brady itself.” Willis v. Jones, 329 F. App’x 7, 16–17 (6th Cir. 2009). The
prosecution in Jefferson’s trial had a constitutional obligation to disclose the full extent
of the consideration given to the cooperating witnesses in exchange for their testimony.
No. 12-1182            Jefferson v. USA                                                         Page 11


This obligation existed regardless of whether the defendants in Jefferson’s trial asked for
the information—which they did, repeatedly. We hold that § 2255(f)(4)’s due-diligence
standard did not require Jefferson continuously to seek out evidence that the government
had a constitutional duty to disclose (evidence that, despite specific requests by the
defense for the information, the government represented did not exist). We reject the
district court’s determination that because Jefferson suspected undisclosed promises as
early as 2000, his failure to seek information from “the cooperating witnesses themselves
or their acquaintances” and his failure to seek sentencing records—which the prosecutor
had sealed—rendered his diligence insufficient. We do not fault Jefferson for failing to
scavenge for evidence of undisclosed promises when he already repeatedly asked for
disclosure and the evidence was unconstitutionally withheld by the government.2

         This holding, however, does not answer the factual question of when Jefferson
could have discovered the factual predicate underlying the claims presented in his March
2005 motions, supplemented by his September 2006 filing. On the one hand, we reject
Jefferson’s argument that he did not discover the factual predicate underlying his claims
until September 30, 2005, when the government disclosed the witness interviews. In
some circumstances, the statute of limitations under § 2255(f)(4) will not begin to run
on a Brady claim until the suppressed evidence is disclosed by the government. See,
e.g., Willis, 329 F. App’x at 17; Rinaldi v. Gillis, 248 F. App’x 371, 378 (3d Cir. 2007);
Starns, 524 F.3d at 619. We need not consider whether these circumstances are present
in this case, because Jefferson’s § 2255 motion was filed in March 2005, before the
government disclosures in September 2005. As we explained in our prior consideration
of Jefferson’s petition, Jefferson cannot “logically argue that he did not discover the


         2
           This case is distinguishable from Bell v. Bell, 512 F.3d 223, 236 (6th Cir. 2008) (en banc), in
which the relevant Brady material was a “matter of public record.” Here, the record suggests that
Convertino actively sought to hide the excessively low sentencing recommendations through off-the-record
discussions with district judges, and through sealing the ultimate sentences the witnesses received. The
Bell court relied on the proposition that “[t]here is no Brady violation where information is available to
the defense ‘because in such cases there is really nothing for the government to disclose.’” Id. at 235
(quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)). Here, the alleged non-disclosures consisted of
tacit promises from the prosecution to government witnesses in exchange for their testimony. The
evidence suggests that deliberate efforts were made to hide the extent of promised sentencing
recommendations from the defense, for example through sealing sentencing records. Given these
circumstances, we cannot conclude that the information deliberately hidden from public view was readily
available to Jefferson.
No. 12-1182         Jefferson v. USA                                                 Page 12


facts supporting the claims presented in the March 2005 motions until after the
government’s disclosures in September 2005.” Jefferson, 392 F. App’x at 431.

        On the other hand, we also reject the government’s argument that Jefferson
“discovered facts underlying the § 2255 motions” as early as 1999 and 2000, when the
motions for a new trial were filed. Appellee Br. at 20. The government’s position
ignores the distinction between suspicions of misconduct and having sufficient facts to
sustain a § 2255 motion. Generally, courts have held that “conclusory allegations alone,
without supporting factual averments, are insufficient to state a valid claim under
§ 2255.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (citing United
States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994)); see also Lynn v. United States,
365 F.3d 1225, 1238 (11th Cir. 2004) (holding that a § 2255 motion failed on the merits
when the motion was supported by affidavits containing “nothing more than conclusory
allegations”); Randy Hertz & James S. Liebman, 1-11 Federal Habeas Corpus Practice
& Procedure § 11.6 (2012) (explaining that the “Rules Governing Section 2254 Cases
. . . require the petitioner to . . . ‘state the facts supporting each ground’” for relief
alleged by the petitioner (quoting Rule 2(c) of the Rules Governing Section 2254 Cases
in the United States District Courts (2010))). We acknowledge that new information
discovered “that merely supports or strengthens a claim that could have been properly
stated without the discovery . . . is not a ‘factual predicate’ for purposes of triggering the
statute of limitations under § 2244(d)(1)(D).” Rivas v. Fischer, 687 F.3d 514, 535 (2d
Cir. 2012). However, we cannot accept the government’s argument that Jefferson had
knowledge of the factual predicate underlying his Brady claim based on his
unsubstantiated suspicion that the prosecution withheld evidence regarding deals with
cooperating witnesses. This is especially so given the prosecution’s representation that
it had fulfilled its obligations under Brady and Giglio to disclose impeachment evidence.
We decline to interpret AEDPA’s competing requirements—the requirement to plead
at least some facts and the requirement of filing within one year of discovering the “vital
facts”—so as to create a trap that renders litigation of a successful § 2255 claim
effectively impossible. “Without a clear standard [as to when suspicion and hints ripen
into a factual predicate], it is likely that when a prisoner spends a tremendous amount
No. 12-1182           Jefferson v. USA                                                         Page 13


of time establishing the validity of the facts, a court may find that the initial piece of
uncorroborated information would be deemed a ‘factual predicate’ to start the
statute-of-limitations period; if, however, a prisoner instead chooses to submit an
application with the same piece of ‘raw’ information, it may fail the fact-pleading
requirement.” Limin Zheng, Actual Innocence as a Gateway through the Statute-of-
Limitations Bar on the Filing of Federal Habeas Corpus Petitions, 90 Cal. L. Rev. 2101,
2135 (2002).

         Although we do not decide at what point in time Jefferson could have discovered
the factual predicate underlying his claims, we note that it was not until March 29, 2004,
that Alexander wrote to the district court asking about the status of his sentencing
reduction. And it was not until October 2004 that Stines filed a § 2255 motion raising
the Brady claim. After counsel was appointed for Stines in January 2005, following a
motion by the government to appoint counsel, Stines’s counsel began to file motions to
unseal the sentencing records of the relevant cooperating witnesses, in an effort to
discover the facts about the consideration received by the witnesses. Given that the
factual development that ultimately uncovered the prosecutorial misconduct appears to
have been ongoing from March 2004 through early 2005, and especially because “a due
diligence inquiry should take into account that prisoners are limited by their physical
confinement,”3 Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004), Jefferson’s motion,
filed in March 2005, appears to have been filed within one year of when the factual
predicate underlying his claims was discoverable using reasonable diligence. We need
not conclusively decide this complicated factual question, however, because, even
assuming Jefferson’s claims were timely filed, we agree with the district court that the
claims fail on the merits.




         3
          We are mindful of “the reality of the prison system,” DiCenzi, 452 F.3d at 471 (internal
quotation marks omitted), and are careful not to overestimate the extent to which the average prisoner is
able to conduct factual investigations given his incarceration and lack of resources.
No. 12-1182        Jefferson v. USA                                               Page 14


       2. Ineffective-Assistance-of-Counsel Claim

       With respect to his ineffective-assistance-of-counsel claim, Jefferson argues that
“the predicate fact was that Labron Nunn had testified for Convertino in USA v. Eric
Hinton a few weeks before he testified against Petitioner Jefferson,” and that Jefferson
did not discover this fact until the spring of 2006 when Hinton and Jefferson were in the
same prison facility. Appellant Br. at 15. This argument is not persuasive, because
Jefferson could have discovered that Nunn testified in the Hinton trial years before 2006.
Specifically, Nunn was cross-examined during Jefferson’s trial regarding inconsistencies
between Nunn’s testimony in the Hinton trial and his testimony at Jefferson’s trial, and
regarding the fact that Convertino was involved in both cases. R. 334 (Trial Tr. at
3442–46, 3455–56) (Page ID #4545–49, 4558–59). Accordingly, Jefferson was aware
of the factual predicate—that Nunn testified in the Hinton trial and that his testimony
may have been inconsistent with his testimony at Jefferson’s trial—at the time of
Jefferson’s trial in 1999. Jefferson could have filed a claim of ineffective assistance of
counsel based on counsel’s failure to get a copy of Nunn’s trial testimony in the Hinton
trial years before Jefferson filed his ineffective-assistance-of-counsel claim in September
2006. Therefore, Jefferson’s ineffective-assistance-of-counsel claim is untimely.

C. Equitable Tolling

       The district court also was instructed by the prior panel to determine whether any
of Jefferson’s claims were entitled to equitable tolling. “The one-year statute of
limitations for filing a § 2255 petition is subject to equitable tolling.” Johnson, 457 F.
App’x at 469. “[E]quitable tolling allows courts to toll a statute of limitations when a
litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.” Robertson v. Simpson, 624 F.3d 781, 783
(6th Cir. 2010) (internal quotation marks omitted). A petitioner is entitled to equitable
tolling “only if he shows (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.” Holland
v. Florida, 130 S. Ct. 2549, 2562 (2010) (internal quotation marks omitted). We have
explained that courts should not be rigid in applying this standard and should “consider
No. 12-1182        Jefferson v. USA                                               Page 15


each claim for equitable tolling on a case-by-case basis.” Jones v. United States,
689 F.3d 621, 627 (6th Cir. 2012). “The flexibility inherent in equitable procedure
enables courts to meet new situations that demand equitable intervention, and to accord
all the relief necessary to correct particular injustices.” Holland, 130 S. Ct. at 2563
(internal quotation marks and alterations omitted).

       On appeal, Jefferson argues that the extraordinary circumstance that prevented
him from timely filing his § 2255 motion was “the elaborate action[] taken by former
prosecutor Convertino . . . to hide promises made to the witness[es] in return for false
testimony, and to suppress pending charges against Witnesses Mullice and Nunn.”
Appellant Br. at 18. Jefferson contends that Convertino’s concealment of sentencing
records through sealing orders prevented him from accessing the relevant documents
needed to pursue his Brady claims. In effect, Jefferson argues that the substance of his
Brady claims—the withholding of relevant impeachment evidence—is the extraordinary
circumstance that prevented him from timely filing. In certain circumstances, “the same
facts supporting a Brady claim [will] also support the application of the doctrine of
equitable tolling.” Wardlaw v. Cain, 541 F.3d 275, 279 (5th Cir. 2008). This
justification for equitable tolling cannot succeed in this case, however, because Jefferson
filed his March 2005 motions before the sentencing records were unsealed, and before
the government disclosed the results of its internal investigation. Accordingly, Jefferson
cannot logically argue that he was prevented from filing his claims before the
information regarding the hidden deals was disclosed to him. Additionally, if it were the
case that the alleged prosecutorial misconduct prevented Jefferson from obtaining the
facts supporting his Brady claim, then the statute of limitations under § 2255(f)(4) would
not have been triggered until Jefferson discovered those relevant facts, which would
permit him to timely file his motion. See Rinaldi, 248 F. App’x at 380. We therefore
conclude that Jefferson has not established that he is entitled to equitable tolling.

D. Merits of Jefferson’s § 2255 Motion—Brady Claims

       Jefferson argues that the district court erred when it determined that the Brady
claims raised in his § 2255 motion failed on the merits. “To warrant relief under section
No. 12-1182        Jefferson v. USA                                               Page 16


2255, a petitioner must demonstrate the existence of an error of constitutional magnitude
which had a substantial and injurious effect or influence on . . . the jury’s verdict.”
Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)). In this case, Jefferson claims that his rights under Brady v.
Maryland, 373 U.S. 83 (1963), were violated when the prosecutor failed to disclose the
extent of the agreements he had made with several witnesses who testified at trial.
Under Brady, “a defendant’s due process rights are violated if the prosecution suppresses
material exculpatory evidence that is favorable to the defense.” Hanna v. Ishee, 694
F.3d 596, 610 (6th Cir. 2012). “Likewise, the prosecution violates Brady if it . . . fails
to volunteer evidence not requested by the defense, or requested only generally.” Id.
To succeed on a Brady claim, “a habeas petitioner must show that (1) the withheld
evidence was favorable to the petitioner, (2) the evidence was suppressed by the
government, and (3) the petitioner suffered prejudice.” Jells v. Mitchell, 538 F.3d 478,
501 (6th Cir. 2008).

       The first prong of the Brady test is met with respect to all of the witnesses with
whom Jefferson alleges Convertino had undisclosed agreements, because a prosecutor’s
duty under Brady extends to impeachment evidence in addition to exculpatory evidence.
See Strickler, 527 U.S. at 280. Both express agreements between the prosecution and
cooperating witnesses, as well as “less formal, unwritten or tacit agreement[s]” are
“subject to Brady’s disclosure mandate.” Bell v. Bell, 512 F.3d 223, 233 (6th Cir. 2008)
(en banc); see Giglio v. United States, 405 U.S. 150, 154–55 (1972). Evidence that the
witnesses in Jefferson’s trial were going to be granted more favorable deals than they
disclosed could have been used to discredit their testimony to a greater degree than was
possible without the impeaching evidence. Thus, Jefferson has demonstrated that the
evidence allegedly withheld was favorable to him.

       Nonetheless, we agree with the district court that for each of the witnesses at
issue, Jefferson either failed to demonstrate the existence of an undisclosed agreement
or failed to meet the prejudice prong of the Brady test. The prejudice analysis under
Brady evaluates the materiality of the evidence. “Evidence is material under Brady if
No. 12-1182        Jefferson v. USA                                              Page 17


a reasonable probability exists that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Jells, 538 F.3d at 501–02. “The
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). Accordingly, “‘where the undisclosed evidence merely
furnishes an additional basis on which to challenge a witness whose credibility has
already been shown to be questionable or who is subject to extensive attack by reason
of other evidence, the undisclosed evidence may be cumulative, and hence not
material.’” Byrd v. Collins, 209 F.3d 486, 518 (6th Cir. 2000) (quoting United States v.
Avellino, 136 F.3d 249, 257 (2d Cir. 1998)); see Akrawi v. Booker, 572 F.3d 252, 264
(6th Cir. 2009) (holding that when “the jury heard substantial evidence of the potential
for a charge-reduction deal,” the failure of the prosecution to disclose an informal
agreement with a witness did not meet the prejudice prong of the Brady analysis). We
address below the testimony of each witness who allegedly had an undisclosed deal with
the prosecution.

       1. Tali Alexander, Reese Palmer, and Rasul Warren

       The district court found that evidence of additional deals with witnesses
Alexander, Palmer, and Warren, even if disclosed, would not have been material. We
agree. Assuming that the impeachment evidence was suppressed, the evidence was not
material because Alexander, Palmer, and Warren were each cross-examined regarding
their deals with the government resulting in favorable sentences, as well as their
willingness to lie to prevent incarceration. See Brooks v. Tennessee, 626 F.3d 878, 891
(6th Cir. 2010) (“assum[ing] without deciding that the evidence was suppressed” for
purposes of a Brady analysis).

       Alexander was cross-examined extensively on the fact that his testimony was
made in exchange for a deal with the government to avoid a life sentence for shooting
multiple people, including a police officer, and for drug and firearm offenses that he
admitted he had committed. See R. 329 (Trial Tr. at 2534–41) (Page ID #7170–77).
No. 12-1182         Jefferson v. USA                                               Page 18


Defense counsel made clear to the jury that Alexander had a strong incentive to testify
to the prosecutors’ satisfaction:

        Q: If for any reason the two [prosecutors] decide not to [make a motion
        for a downward departure], sir, you are looking at spending the rest of
        your life plus 10 years in a federal penitentiary, correct?
        A. Right.
        ...
        Q. To avoid that, sir, you will do anything to get out rather than spend
        the rest of your life in a federal penitentiary?
        A. Yep.

Id. at 2541 (Page ID #7177). Alexander also admitted that he repeatedly had lied to
police officers, that he would lie to avoid criminal charges, and that he would lie to avoid
receiving a life sentence. See id. at 2600–01 (Page ID #7236–37); id. at 2673 (Page ID
#7309) (admitting that he “cooperated to keep from getting life”).

        Similarly, Palmer was cross-examined about his motives for cooperating with the
government and testifying against his coconspirators. Palmer stated that he decided to
cooperate after learning that he had unwittingly sold crack cocaine to an undercover
police officer, stating, “I couldn’t deny it . . . because the [undercover agent] was right
before me.” R. 325 (Trial Tr. at 1970) (Page ID #6482). The jury was aware that
pursuant to his plea agreement, Palmer pleaded guilty to delivering only 13.57 grams of
cocaine base and 225.75 grams of cocaine, even though he had informed police that he
had been dealing cocaine in much larger quantities, upwards of three kilograms. See
R. 327 (Trial Tr. at 2250–53) (Page ID #7818–21). In other words, the jury was made
aware that had Palmer not cooperated, he would face 324 to 405 months in prison. Id.
at 2267 (Page ID #7836). Instead, because he cooperated, Palmer received a plea
agreement that calculated an agreed-to guidelines range of seventy to eighty-seven
months. Further, if the government was satisfied with Palmer’s cooperation, it agreed
to recommend a downward departure to sixty months. Id. at 2267–70 (Page ID
#7835–38). Palmer also admitted to lying repeatedly to his parole officer about selling
drugs to avoid additional penalties. R. 326 (Trial Tr. at 2211–13) (Page ID #6722–24).
Accordingly, the jury had reason to believe that Palmer had a strong incentive to give
No. 12-1182        Jefferson v. USA                                               Page 19


perjured or exaggerated testimony against the defendants in exchange for a more lenient
sentence, and that he had a history of lying to law enforcement officers to protect
himself.

       Finally, Warren was cross-examined on his incentives for cooperating with the
government. He stated: “The reason I cooperated that night was because I was caught
red handed for ounces of cocaine, and I was on parole and facing 50 years, and I think
about my kids and my family and think about myself.” R. 335 (Trial Tr. at 3672) (Page
ID #5922). Warren admitted that his agreement with the government included a
provision for the government to make a downward departure from a recommended
sentence of twenty-two years to a recommended sentence of ten years in exchange for
Warren’s cooperation. Id. at 3691–92, 3694 (Page ID #5941–42, 5944). Further,
Warren testified that he had a history of lying to government agents, and he admitted that
he would lie for the government in court to avoid going back to prison. Id. at 3708, 3808
(Page ID #5958, 6058).

       This summary of the relevant cross-examinations demonstrates that Alexander,
Palmer, and Warren had their credibility impeached regarding their incentives to give
favorable testimony in exchange for significantly more lenient sentences: Alexander
was avoiding a life sentence in exchange for a downward departure that would leave the
maximum sentence at twenty-five years; Palmer would receive a downward-departure
recommendation for a sentence not to exceed five years, instead of facing between
twenty-seven and thirty-three years in federal prison for larger drug quantities; and in
exchange for Warren’s testimony, the government would recommend ten years in prison,
rather than the twenty-two-year sentence he would face absent any cooperation. Despite
the fact that these witnesses ultimately received even more lenient sentences, the jury
already was aware of the witnesses’ significant motives to exaggerate or fabricate to
please the government. Each witness also had admitted that he would lie to avoid harsh
penalties. Accordingly, under our precedents, the additional basis on which to attack
these witnesses’ credibility was not material, and Jefferson’s Brady claims regarding
these witnesses fail. See Byrd, 209 F.3d at 518.
No. 12-1182         Jefferson v. USA                                                Page 20


        2. Labron Nunn and Samuel Mullice

        The testimony of Nunn and Mullice at Jefferson’s trial helped connect Jefferson
to the Stines conspiracy. Jefferson argues that the fact that both Nunn and Mullice were
not charged or prosecuted for crimes they admitted to committing demonstrates that they
had undisclosed agreements with Convertino. Appellant Br. at 33. The district court
rejected this argument, finding that Jefferson’s claims regarding Nunn and Mullice were
entirely speculative, and that Jefferson had presented no evidence to establish the
existence of an undisclosed deal. We affirm the district court’s determination that
Jefferson did not establish that a secret deal existed with respect either to Nunn or
Mullice. We have held that “[t]he mere fact that [some witnesses’] sentences were later
altered is not evidence that a deal existed prior to their testimony at trial.” Williams v.
Coyle, 260 F.3d 684, 707 (6th Cir. 2001); see also Matthews v. Ishee, 486 F.3d 883, 896
(6th Cir. 2007). Accordingly, the fact that both Nunn and Mullice were not prosecuted
for particular crimes, without more, is insufficient, under our precedents, to establish that
an undisclosed deal existed.

        Even assuming that there was an undisclosed agreement with Nunn, the
additional impeachment evidence would not be prejudicial, because the jury was made
aware that Nunn was admitting in open court to criminal acts, but stated he did not
expect to be prosecuted. Nunn testified at trial that he did not have an agreement with
anyone from the state or federal prosecutor’s office regarding any benefit he would
receive for his testimony. R. 334 (Trial Tr. at 3437) (Page ID #4540). However, on
cross-examination, Nunn also stated that he knew the government could charge him with
the crimes he admitted to under oath, and that if he was prosecuted for those crimes, he
could be facing “a substantial amount of time up to probably life in prison.” Id. at 3486
(Page ID #4589). Nunn was cross-examined thoroughly on his motives for testifying,
and the improbability of his providing testimony regarding his own criminal activities
without a written plea agreement, without a lawyer present, and with no promise of
immunity. See id. at 3486–87 (Page ID #4589–90). Nunn also admitted to the jury that
he was a liar and a thief. Id. at 3490 (Page ID #4593). As in Akrawi, the cross-
No. 12-1182        Jefferson v. USA                                               Page 21


examination of Nunn “would arguably have been more effective if evidence of the
mutual understanding [with the prosecutor] had been disclosed prior to trial, but only
incrementally so.” 572 F.3d at 264. Accordingly, the non-disclosure of a tacit
agreement between Convertino and Nunn, assuming an agreement existed, was not
prejudicial.

       Mullice similarly denied receiving benefits from the government for his
testimony. R. 331 (Trial Tr. at 2780) (Page ID #6762). However, Mullice admitted to
the jury that he had pending charges against him for possession of crack cocaine (and
that he was guilty of those offenses), but that he did not expect the government to pursue
the case against him. However, on cross-examination, he could not come up with an
answer for why he did not expect to be charged or prosecuted for these crimes. Id. at
2782–86 (Page ID #6764–68). The jury understood that Mullice had a motive to testify
favorably for the government and that he may have stood to benefit significantly through
his cooperation. Thus, any undisclosed impeachment evidence would have been
cumulative. Accordingly, even if Convertino suppressed evidence of deals with Nunn
and Mullice, the additional impeachment evidence would not “put the whole case in such
a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435. We
hold that Jefferson’s Brady claims relating to Nunn and Mullice fail.

       3. Eva Taylor

       Like Warren, Palmer, and Alexander, Taylor was cross-examined about her plea
agreement with the government. She admitted that, absent her cooperation with the
government, she would face a mandatory minimum of ten years in prison and would
likely receive a sentence of between twenty-five and thirty years in prison. R. 322 (Trial
Tr. at 1472) (Page ID #7087). However, pursuant to her plea agreement, if Taylor
cooperated with the government and testified against her coconspirators, the government
would make a recommendation to the sentencing judge that she receive a sentence of
only four years. Id. at 1473 (Page ID #7088). Taylor also admitted lying to the
government in the past. See id. at 1416 (Page ID #7031). After Jefferson’s trial ended,
Taylor ultimately was sentenced to only two years of probation. Assuming there was an
No. 12-1182           Jefferson v. USA                                                       Page 22


undisclosed deal, as the circumstantial evidence of Taylor’s grossly reduced sentence
suggests, the cross-examination repeated above demonstrates that Taylor’s credibility
was impeached thoroughly regarding her incentives to testify favorably towards the
government. Accordingly, the undisclosed evidence would be cumulative and not
prejudicial.

        4. Aaron Bowles

        Like Jefferson’s Brady claims with respect to the trial witnesses, Jefferson’s
Brady claim regarding an undisclosed promise with Aaron Bowles (“Bowles”) in
exchange for his testimony at sentencing fails, because even if such an undisclosed
promise existed, it would not meet the standard for prejudice.4 On cross-examination,
Bowles admitted that he was cooperating with the government so that it would make a
recommendation for a reduction in his sentence. R. 423-1 (Sent. Hr’g Tr. at 64–65)
(Page ID #3128–29). Accordingly, Bowles’s credibility was impeached, because it was
established that he had a strong motive to testify to the government’s satisfaction.

        More significantly, the primary basis for the district court’s drug-quantity
determination was Jefferson’s admissions to law enforcement officers when he was
initially arrested. See R. 425 (Sent. Hr’g Tr. at 23–24) (Page ID #3171–72). Jefferson
conceded that if his statement to law enforcement officers was considered reliable
evidence, it would establish that he was responsible for three-and-a-half kilograms of
cocaine. R. 285 (Def.’s Supp. Sent. Mem. at 3) (Page ID #9849). The district court
found this statement reliable, and thus found that Jefferson was responsible for at least
one-and-a-half kilograms of cocaine. R. 425 (Sent. Hr’g Tr. at 23–24) (Page ID
#3171–72). Although the district court also credited Bowles’s testimony, even with
additional impeachment evidence, there is not a reasonable probability that the district
court would have found Jefferson liable for less than one-and-a-half kilograms of
cocaine. Thus, Jefferson’s claim relating to Bowles fails.



        4
          Brady’s obligations “appl[y] to evidence material to sentencing.” See, e.g., United States v.
King, 628 F.3d 693, 704 (4th Cir. 2011).
No. 12-1182         Jefferson v. USA                                                 Page 23


        5. Donald Bailey

        Jefferson’s assertions regarding Officer Donald Bailey (“Bailey) lack merit.
Jefferson asserts that Convertino withheld information regarding Bailey’s disciplinary
history from the court, or otherwise lied about that history. Appellant Br. at 41–42.
However, the trial transcript indicates that defense counsel was aware of the information,
and that Convertino did not deny it, but only objected to the questioning on evidentiary
grounds. R. 319 (Trial Tr. at 907–17) (Page ID #5259–69). Jefferson has not
established that Convertino withheld any information from defense counsel relating to
Bailey’s conduct in unrelated state-court cases.

                                         *    *    *

        Although the record in this case suggests egregious prosecutorial misconduct, the
bad faith of the prosecutor does not impact our Brady analysis. See Strickler, 527 U.S.
at 288 (“‘If the suppression of evidence results in constitutional error, it is because of the
character of the evidence, not the character of the prosecutor.’” (quoting United States
v. Agurs, 427 U.S. 97, 110 (1976))). We affirm the district court’s conclusion that
Jefferson’s Brady claims fail on the merits.

                                   III. CONCLUSION

        For the foregoing reasons, we AFFIRM the judgment of the district court.
